April 2011
BNA International
By Margaret A. Esquenet
This article by Finnegan of counsel, Margaret A. Esquenet, discusses the Levi Strauss & Co. v. Abercrombie & Fitch Trading Co case where the U.S. Ninth Circuit “held that the District Court’s analysis of a dilution-by-blurring action relating to the stitched design on jeans pockets was faulty because it used an outdated test to compare the parties’ marks.” Esquenet examines the case including the facts, submissions, previous case law, and the appeal decision. The author also looks at how the standard under the Trademark and Dilution Revision Act of 2006 (TDRA) is different to the TDRA’s predecessor, the Federal Trademark Dilution Act (FTDA). Esquenet concludes that “the requirement of near or exact identity did not survive the enactment of the TDRA. As two appellate courts have now found that the owner of a famous mark is not required to show that the junior mark is identical or nearly identical to obtain relief under the TDRA, this standard will likely be difficult to challenge, even outside the Second and Ninth Circuits.”
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