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Judge Dismisses Lawsuit Claiming Levi’s a “Trademark Bully”

A legal battle that began with a cease-and-desist letter sent to Barbour HQ courtesy of Levi Strauss & Co., which required the immediate discontinuation of all Barbour products which bear Barbour’s blue logo tab, ended in a Manhattan federal courtroom on Thursday as the presiding judge threw out Barbour’s case against the American denim brand.

Barbour filed the initial complaint on June 9, 2018, alleging that Levi’s cease-and-desist letter was indicative of “severe overreaching by a company that has the dubious distinction of being one of the world’s biggest trademark bullies.” It sought a judgment from the court that would protect it against future legal action put forth by Levi Strass & Co.

Indeed, Levi’s has pursued aggressive legal action against brands it believes have infringed on its trademark tab. It sued Vineyard Vines for trademark infringement in 2017 and Kenzo for the same last year. Levi’s often has the upper hand in these cases, thanks to its long history and its decision to stridently defend the tab. In total, it has filed more than 300 trademark lawsuits since 1989.

However, Barbour has its own history to consider. It has sold Barbour-branded apparel since 1894, only 41 years after Levi’s was founded. The defense began its case by citing the long and well-recorded history Barbour has with its “Barbour flag.”

“For many years, Barbour Inc. has advertised and sold apparel products in the U.S. featuring the “Barbour flag,” a piece of fabric bearing the “Barbour” name and typically affixed to the seam of the pocket of the garment,” the defense began.

The U.K.-based organization has acted as the outfitter for British troops and is a well-known brand in its home country. Its lawyers contended that consumers who purchase from either brand are usually well aware of which brand sells the product.

“No reasonable and prudent consumer would ever mistakenly believe that these Barbour-branded products are somehow connected with, affiliated with, or sponsored by Levi Strauss & Co…there has never been a single instance where a consumer or potential consumer has expressed any such confusion between Barbour products and those offered by Levi Strauss & Co.,” Barbour lawyers concluded.

Images of Barbour's label tag

Images of the Barbour tag provided to the court by the brand’s legal team.

However, it appears that the defense was unable to move the judge, senior United States District appointee Loretta A. Preska, to agree with the plaintiff’s motion. When Levi’s legal team filed a motion to dismiss, following a hearing, Preska granted the motion—effectively granting Levi’s the go-ahead to pursue legal action with Barbour and possibly other organizations.

“For the reasons set forth on the record today, Defendant’s motion to Dismiss the Complaint is granted. The clerk of the court shall mark this action closed and all pending motions denied as moot,” the judge’s final order stated.

Levi’s has another case pending, over the same trademark, filed against Yves Saint Laurent on Nov. 16 of last year. In the suit, Levi’s legal defense claims that infringement by Yves Saint Laurent has caused “incalculable and irreparable damage” to the brand. It will be decided in a California federal court.

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