## Facts

- Abercrombie & Fitch Stores, Inc. (A&F) and American Eagle Outfitters, Inc. (AE) competed in the casual clothing retail market aimed at college-age consumers.
- A&F sued AE asserting unregistered trade dress infringement under Lanham Act § 43(a), plus related Ohio statutory and common-law unfair competition theories.
- A&F claimed AE copied A&F’s overall marketing “look,” including (1) clothing designs and designations on garments, (2) in-store presentation and promotional materials, and (3) A&F’s lifestyle/catalog publication, *A&F Quarterly*.
- The asserted trade dress for clothing and stores included common words and descriptors, basic color and stripe combinations, and retail presentation elements associated with casual apparel stores, including use of college-age sales associates.
- For the catalog, A&F claimed trade dress in the overall “look and feel,” including the combination of photography style, editorial content, and product display format.
- AE sought summary judgment, arguing A&F was attempting to monopolize generic marketing devices and otherwise unprotectable features.
- The district court granted summary judgment to AE on all claims; A&F appealed.

## Issues

1. Whether A&F’s claimed clothing-design and in-store presentation features were non-functional and therefore protectable as trade dress under Lanham Act § 43(a).
2. Whether *A&F Quarterly* constituted protectable, non-functional trade dress and, if so, whether AE’s catalog was confusingly similar as a matter of law.

## Decision

- The Sixth Circuit affirmed summary judgment for AE, reviewing de novo.
- The court held A&F’s claimed clothing-design and in-store presentation trade dress was functional as a matter of law and therefore not protectable.
- The court concluded *A&F Quarterly* could constitute non-functional, distinctive trade dress.
- Even assuming protectability of A&F’s catalog trade dress, the court held AE’s catalog was not confusingly similar as a matter of law, defeating infringement.

## Legal Principles

- Unregistered trade dress may be protected under Lanham Act § 43(a) if the plaintiff shows protectable trade dress (including non-functionality and distinctiveness/secondary meaning where required) and a likelihood of confusion.
- Trade dress protection does not extend to functional features; a claimed “look” is functional if exclusive rights would significantly disadvantage competitors and hinder competition in the relevant market.
- Product design and store presentation can qualify as trade dress in appropriate cases, but must satisfy the non-functionality requirement.
- For visual works such as catalogs, trade dress analysis focuses on the overall impression (“total image”); copying isolated elements is insufficient absent likely consumer confusion.
- Likelihood of confusion can be resolved on summary judgment where the competing overall presentations are so dissimilar that no reasonable factfinder could find confusion.

## Conclusion

The Sixth Circuit rejected A&F’s attempt to claim trade dress rights in functional, competitively necessary aspects of casual clothing and retail presentation, and held that although A&F’s catalog could be protectable trade dress, AE’s catalog was sufficiently different in overall appearance to preclude a finding of likely consumer confusion.


Abercrombie & Fitch Stores, Inc. v. American Eagle Outfitters, Inc., 280 F.3d 619 (6th Cir. 2002)