## Facts

- Levi Strauss & Co. owned an incontestable federal trademark for an arcuate back-pocket stitching design consisting of two intersecting arcs.
- Levi extensively advertised the arcuate design, and consumers strongly associated the stitching pattern with Levi’s jeans.
- Textiles y Confecciones Europeas, S.A., manufactured “Lois” brand jeans with a similar arcuate back-pocket stitch design; Lois Sportswear, U.S.A., Inc. began importing and distributing the jeans in the United States in 1979.
- Levi challenged the imports through U.S. Customs; subsequent litigation led Lois to seek a declaratory judgment of noninfringement in federal court.
- Levi counterclaimed for trademark infringement and unfair competition; the district court granted summary judgment for Levi and enjoined Lois and Textiles from using the stitching pattern.
- The court of appeals found the competing stitching designs “essentially identical,” with only a minor difference at the intersection that was not readily perceptible at ordinary viewing distances.

## Issues

1. Whether use of a back-pocket stitching pattern essentially identical to Levi’s registered arcuate mark on competing jeans created a likelihood of confusion as to source, affiliation, or sponsorship.
2. Whether likelihood of confusion could be decided as a matter of law on summary judgment on an undisputed record, including a theory of post-sale confusion.

## Decision

- The Second Circuit affirmed summary judgment for Levi on trademark infringement and unfair competition.
- Applying the Polaroid factors, the court held the undisputed evidence established a likelihood of confusion.
- The court recognized actionable post-sale confusion: observers seeing the jeans worn could mistakenly believe they were Levi’s or affiliated with Levi even if point-of-sale labeling reduced purchaser confusion.
- The court upheld an injunction barring Lois and Textiles from using the essentially identical back-pocket stitching design.

## Legal Principles

- Likelihood of confusion is assessed under the Polaroid factors: (1) strength of the mark, (2) similarity, (3) product proximity, (4) bridging the gap, (5) actual confusion, (6) defendant’s good faith, (7) quality, and (8) buyer sophistication.
- A strong, distinctive, incontestable design mark with substantial consumer association supports a finding of likely confusion, particularly where competing products are identical in category.
- Actual confusion is not required to prove likelihood of confusion.
- Lack of bad faith does not preclude liability when the marks are overwhelmingly similar and the overall record shows likely confusion.
- Post-sale confusion is actionable where third-party observers, without access to labels or other point-of-sale information, may infer source or affiliation from a visible product feature serving as a source identifier.
- Summary judgment is appropriate when the material facts relevant to likelihood of confusion are undisputed and only one outcome is legally supportable.

## Conclusion

The court held that Levi’s incontestable arcuate stitching mark was strongly associated with Levi’s jeans and that Lois’s essentially identical back-pocket stitching on competing jeans created a likelihood of confusion, including post-sale confusion, making summary judgment and injunctive relief proper.


Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867 (2d Cir. 1986)