139
C
ASE: 18
ISSUE BEFORE THE COURT
Whether the two catalogs by major clothing companies are sufficiently
distinct from each other so that a reasonably prudent consumer can
differentiate between the two companies depicted in each catalog?
THE FACTS
You Be the Judge!
You Be the Judge!
Revenue for
Abercrombie &
Fitch in 2009 was
$3,540,000,000.
is case pits an old hand against the new kid on the block: Aber-
crombie & Fitch sued American Eagle claiming that American Eagle
infringed on what Abercrombie & Fitch describes as its unregistered
"trade dress."
Abercrombie & Fitch was founded in 1892 and is a retailer of ca-
sual clothing and accessories appealing to college-age consumers. In
1988, e Limited, Inc. acquired Abercrombie & Fitch and rejuvenat-
ed the brand, selling billions of dollars in merchandise and spending
over $26 million on marketing, including advertisements in national
and fashion magazines. Abercrombie & Fitch products are sold na-
tionwide through 157 retail stores and a mail order catalog under the
registered trademarks and service marks ABERCROMBIE & FITCH,
A & F CO, A & F, and variations thereof.
American Eagle Out tters sells essentially the same variety of
clothing and products in its 300 stores nationwide under the trade-
marks and service marks AMERICAN EAGLE OUTFITTERS and
AE, generating approximately $300 million in annual sales. Ameri-
can Eagle has been a retailer since at least 1994, although many of its
products describe the company's vintage as 1977.
Abercrombie & Fitch accused American Eagle of selling similar
products and marketing them in a similar way, which confused the
consumer as to which products belonged to each company.
Speci cally, Abercrombie & Fitch asserted that American Eagle
copied its premiere issue of e Quarterly, an Abercrombie & Fitch
catalog that advertises Abercrombie & Fitch products in a way to
depict a certain lifestyle. First, Abercrombie & Fitch alleged that
American Eagle's catalog featured the same products, colors, designs,
fabrics, and names (i.e., "vintage" sweatshirts and " eld jerseys") as
e Quarterly.
Second, Abercrombie & Fitch claimed that the paper, page layouts,
lifestyle editorial content, manner of displaying merchandise, and
typeface in American Eagle's catalog were identical or confusingly