## Facts

- Levi Strauss & Co. owns a federally registered “Arcuate” back-pocket stitching design mark used on Levi’s jeans since the 1870s.
- Levi’s asserted the Arcuate mark is famous and commercially significant, with garment sales bearing the mark constituting the great majority of its long-term revenue.
- Abercrombie & Fitch Trading Co. sold Ruehl-branded jeans using a different back-pocket stitching design featuring two less-pronounced arches connected by an “infinity”-like figure and positioned lower on the pocket.
- Levi’s sued and ultimately pursued only a federal dilution-by-blurring claim under the Trademark Dilution Revision Act of 2006 (TDRA), seeking injunctive relief.
- The district court, after a bench trial with an advisory jury, entered judgment for Abercrombie, reasoning that Levi’s had not shown the Ruehl design was “identical or nearly identical” to the Arcuate mark and thus had not established a likelihood of dilution.

## Issues

1. Whether, under the TDRA, a dilution-by-blurring plaintiff must prove the junior mark is “identical or nearly identical” to the famous mark, or instead must satisfy the TDRA’s statutory “likelihood of dilution” standard using the statute’s multifactor framework.
2. Whether the district court’s use of an “identical or nearly identical” requirement was harmless error given its additional findings regarding similarity and other dilution considerations.

## Decision

- The Ninth Circuit reversed and remanded.
- The court held the TDRA displaced any standalone requirement that the junior mark be “identical or nearly identical” to the famous mark for dilution by blurring.
- The court held the district court’s reliance on the incorrect standard was not harmless because it permeated the analysis and made it uncertain whether the same result would follow under the TDRA’s proper framework.

## Legal Principles

- Under the TDRA, dilution by blurring is assessed under a statutory “likelihood of dilution” standard, defined as an association arising from similarity that impairs the distinctiveness of the famous mark.
- The “degree of similarity” is one factor among several that courts may consider; the statute does not impose an identity-or-near-identity threshold.
- Pre-TDRA circuit authority requiring “identical or nearly identical” marks is not controlling to the extent inconsistent with the TDRA’s text and multifactor approach.
- When a trial court treats a non-statutory similarity threshold as a legal prerequisite, the resulting error is not harmless if it affects the court’s evaluation and weighting of the statutory factors.

## Conclusion

The Ninth Circuit required dilution-by-blurring claims to be decided under the TDRA’s statutory likelihood-of-dilution framework and rejected any separate “identical or nearly identical” prerequisite, remanding for reconsideration under the correct legal standard.


Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 633 F.3d 1158 (9th Cir. 2011)