New developments in the Levi's vs Japanese repros story

[Raijin-Fujin]

Let's also not forget prior art. Levis can register as many stiching designs as they want but if someone shows they were using that or one similar before Levis filed the patent then they have no cause... even if the other company didn't trademark the stitching. (I wonder if I should trademark my backpocket stitching now...)

[gimmegimme]

Let's also not forget prior art. Levis can register as many stiching designs as they want but if someone shows they were using that or one similar before Levis filed the patent then they have no cause... even if the other company didn't trademark the stitching. (I wonder if I should trademark my backpocket stitching now...)

Prior art is patent terminology...we're talking about trademarks...but you are correct that at times a trademark filed later, but with earlier use, will take priority over the earlier filed mark. This would fall under common law, and again you'd have to have continual use of that mark, and be able to prove your first date of use.

[theetruscan]

If, for example, Levi's went after someone for using something confusingly similar to one of those designs, the first thing to other party would do is investigate use. Otherwise they have no argument, and in most countries there are procedures to expunge (get rid of) someone's trademark if they aren't using it.

My statement was wrong, see gimmegimme directly below here for the actual trademark renewal requirements.

[gimmegimme]

That's not required in the US or Canada (not positive about other countries). You only have to file evidence of use prior to your application going through to registration, and in Canada, you only have to sign a declaration. In the US, you have to provide a specimen showing use (a product with the TM on it). After all that is taken care of, you only have to sign an affidavit upon renewing the mark every 10 years (I think its 10 years in the US...its 15 years in Canada).

[Guest stuckinutah]

That's not required in the US or Canada (not positive about other countries). You only have to file evidence of use prior to your application going through to registration, and in Canada, you only have to sign a declaration. In the US, you have to provide a specimen showing use (a product with the TM on it). After all that is taken care of, you only have to sign an affidavit upon renewing the mark every 10 years (I think its 10 years in the US...its 15 years in Canada).

It is only ten years if it was filed after November 16, 1989. If you filed before that day, it is twenty years for renewals.

[theetruscan]

It is only ten years if it was or were filed on or before November 16, 1989. If you filed before that day, it is twenty years for renewals.

Wait, you say before for both options. Which one is it?

[gimmegimme]

Wait, you say before for both options. Which one is it?

Twenty prior to that date, 10 after.

[Guest stuckinutah]

Twenty prior to that date, 10 after.

corrected ... my bad

[Roland]

WWD - 8/30/07

Chapter 4 (Supreme) and Lips Jeans are both getting sued.

Levis asked for an injunction, damages, trial costs and for infringing products to be turned over.

[beatle]

[Double D]

ive been talking to gordon about this all day... he brought up something that makes perfect sense... and id like to share it with you.

"Levi's came up with a good idea for marking their product for recognition and

had the clever idea to trademark them. Brands and customers fighting for the

arcs and tabs on non-Levi products just strengthens Levi's point and

rationalizes their view on brand identity protection.

Levi's knows that a lot of people buy these Japanes brands jeans because they

look like Levi's or an interpretation of them. Look at the lengths people will

go to get the arcs and tabs as opposed to plain pockets and no tab. Every time

that happens Levi's wins. The brands know this too and the more customers who

stress about the arcs and tabs to the brands the more these brands will feel

that they will not flourish without these identifying marks."

just think about that for a while

Guess I'm alone in the world disliking those godforsaken arcs in the first place.

[Roland]

Info about their Global Protection Team:

Global Brand Protection Head:

http://www.levistrauss.com/Company/LeaderDetails.aspx?id=7

Article on law.com

http://www.law.com/jsp/ihc/PubArticleIHC.jsp?id=1155822492029

[hysteric]

I can completely understand why levis would want to protect their arcutes and tab, but as cotton duck says I cant see how they can justify suing over vintage cuts, I personally love repro cuts especially from the 50's and down and although id go to LVC if i had to I would hate to see japanese companies only producing dior,apc and nudie style cuts

[beatle]

However this ends - it sure is'nt the best PR for Levi's anyway...

[hysteric]

i still find it weird how extreme levis is getting over these brands which are carried in all of like 10 stores in North america and represent a very small segment of the denim market

[Darkeside]

i'd imagine the companies Levis are now targeting are to drive home the point, and get as high a coverage of the story as possible.

I doubt they want to drag this out so high profile cases where the infringements seem clear cut would be the best way for them to make the denim world take notice.

alot of the posts here have me conflicted - sure Levi's are coming off as a bully in all of this, but if you were protecting your own ideas wouldn't you use everything within your power to do so?

[theetruscan]

i still find it weird how extreme levis is getting over these brands which are carried in all of like 10 stores in North america and represent a very small segment of the denim market

Gimmegimme clearly actually knows what he is talking about, and hopefully he will correct my ignorant statement, but I suspect this is part of Levi's effort to keep the value of their mark from disappearing. I know copyrights, and I think trademarks as well, can lose their protection if the term enters common parlance. I don't know the exact conditions, but I bet that if a few of these brands hung around in the American market for 10 years selling jeans with arcs and tabs it would be a strong argument for the genericization (sorry, don't know the word) of the designs.

[beatle]

Yeah - but we've kind of accepted the whole arc and tab deal...it's done..

But the 5 pocket Jeans ? I don't think so..

If Levi's would have kept track of the market and the actual demand they would'nt have lost so much dough over the last 10 years .

I mean - 15 oz Texas Cotton - could have been invented by Levi's/// All they did is drop 13 oz 501 XX repros on the market and fill the shelves with low quality pre washed denims... and no improvements whatsoever on their high end products...

I am always happy to stand corrected - but please give me an example...

[theetruscan]

Yeah - but we've kind of accepted the whole arc and tab deal...it's done..

But the 5 pocket Jeans ? I don't think so..

If Levi's would have kept track of the market and the actual demand they would'nt have lost so much dough over the last 10 years .

I mean - 15 oz Texas Cotton - could have been invented by Levi's/// All they did is drop 13 oz 501 XX repros on the market and fill the shelves with low quality pre washed denims... and no improvements whatsoever on their high end products...

I am always happy to stand corrected - but please give me an example...

yeah, 5 pocket jeans would be a failure of a claim I expect. Have we seen any filings regarding owning that though?

[gimmegimme]

You're right that by Levi's ignoring the problem with their competitors, it sets a good argument for the other parites to say "we've been doing it this whole time...why is it a problem now?". But alas, Levi's clearly squashed that argument.

As of yet, I have not seen any actual example of Levi's suing or starting a legal action over the 5-pocket design...only the stitching/tab/patch. This is not to say that there won't be...and its suspicious that the repro companies are ceasing certain cuts, but this could have resulted from Levi's making several claims in their demands that are not public information.

So until someone from one of the repro companies spills, or we see actual press on Levi's claiming possession of certain cuts, we can only make assumptions.

[Charlie Delta]

Here's what Cheep said earlier on in the thread:

think about it like this... by looking at the pocket layout, of back pocket shape, width, and coin pocket placement and shape you can tell between levis, lee, and wrangler right? you can tell a lee repro immediately. this is what levis is going after.

or think of this... nudie will not be a target because of the pocket shape, the dropped yoke, the dropped pockets. it does not resemble a pair of levis. a pair of warehouse 1000xx and a pair of vintage levis with red tab and arcuates removed will look exactly the same.

it made me understand the whole 5 pocket thing more.

I can somewhere understand that Levi's would want to defend their 5 pocket layout, not the fact that their jeans have 5 pockets, but the way those are positioned on the jeans.

And if that exact layout is being copied then it doesn't matter if it's a copy of a '47 a '55 or a '66 jeans, it's still a copy of their product and they should have the right to defend that.

Atleast that's the way I see it at the moment.

[theetruscan]

They can only protect it if they've explicitly protected it. It's my understanding that they must protect each, and every, pattern separately, and even then the protection is limited. I've not seen any evidence that they have done so. I am OUT OF MY DEPTH, don't believe me without researching.

[beatle]

Just came acrossed this old article..

Thought it's interesting anyway , since it belongs somehow in the picture

Iconic jeans maker Levi Strauss has said it plans to axe jobs in response to a sharp drop in profits during the three months to November 2001.

Two of the company's Scottish factories are to close with the loss of around 600 jobs, and further cutbacks are expected at Levi's US operations.

News of the job cuts came as Levi Strauss revealed that profits for the period fell by 16% on the year to $62.9m, pressured by a downturn in sales as recession-struck consumers reduce spending on clothes.

The company said sales fell particularly steeply in Japan, where many retail outlets have gone bankrupt during the country's current recession. Sales were also lower in the US.

Debt repayment on track

But Levi's stressed that the reduced profits will not hinder its ability to continue paying off its $1.8bn debt mountain.

The company's high level of debt has been seen as one of its main weaknesses since a leading ratings agency downgraded its creditworthiness last year.

Levi's, a privately owned company, publishes its financial results chiefly to retain the confidence of lenders.

Once the undisputed leader of the global jeans market, Levi's has come under pressure in recent years as consumer tastes have moved away from plain denim jeans.

The company also faces stiff competition from a growing number of more cutting-edge brands.

Last year, the company won a court battle aimed at preventing UK retailer Tesco from selling Levi jeans imported from outside the European Union at a discount.

http://news.bbc.co.uk/1/hi/business/1764454.stm

[Paul T]

That sounds reasonable and I don't think anybody can seriously say anything against Levis defending their tab and arcs.

However in the SDA thread you posted this quote:

to wich I replied:

While that might be disguised as a joke I was serious about them claiming the 5 pocket layout as theirs, that is just rediculous!

That is public domain imo, and even if it weren't Levi's won't be able to prove that they were the first to have come up with it. It's just something that evolved into what it is today.

I'm late in on this - and it's a great thread - and I'm sure that this is covered already, but of course Levi's aren't deluded enough to attack the generic 5 pocket jean market.

all this has happened before, and will happen again. the back pocket arcuate has been trademarked and the subject of countless lawsuits for 50s years or more - likewise the red tag.

Levi's were the first to come up with the idea of the blue jean as we know it. But you can't patent an idea. However, you can register and protect a trademark, which is what they're doing. The main reason for what we're seeing is that a lot of boutique Japanese manufacturers have been expanding outside Japan (where levi's don't own the red tag trademark). Levi's have been having legal tussles with big rivals like A&R for most of the time they've been in existence. You will always find them going for competitors who use similar arcuates, red (or other colour) tags and two-horse patches.

But given that five pocket pants have been produced by competitors right from the time Levi's introduced them, they'd have no chance of succeeding in a lawsuit. They are well aware of this. In fact, I spoke to one employee a few weeks ago, who bemoaned the fact they hadn't trademarked (along with Cone) the red line on selvage. It's another way rivals copy/pay tribute to what was once a distinguishing Levi's mark, but Levi's can't do a thing about it.

[blm14]

i still find it weird how extreme levis is getting over these brands which are carried in all of like 10 stores in North america and represent a very small segment of the denim market

I think this has more to do with trademark law than anything else. If they DONT enforce it themselves in the court frequently then if the issue comes up and the defendant can show that there's already a lot of other companies breaking the trademark, then the plaintiff is at risk for losing the trademark altogether. Trademark rights are maintained through enforcement. I'm not a lawyer, but this is how I understand it.

[gimmegimme]

I think this has more to do with trademark law than anything else. If they DONT enforce it themselves in the court frequently then if the issue comes up and the defendant can show that there's already a lot of other companies breaking the trademark, then the plaintiff is at risk for losing the trademark altogether. Trademark rights are maintained through enforcement. I'm not a lawyer, but this is how I understand it.

No one loses their trademark if its shown that other companies are using it. The only way you can lose your trademark is if an application is made by another party asking you to show proof of its use, and you can't.

[Paul T]

No one loses their trademark if its shown that other companies are using it. The only way you can lose your trademark is if an application is made by another party asking you to show proof of its use, and you can't.

In my experience this is incorrect. If a competitor can show a trademark is 'generic' they can apply to have it rescinded. If other parties use a trademark, without your preventing them, then the trademark will eventually become generic - and you will lose it.

I'm certain this is the case in US law, and suspect much the same applies worldwide.

[gimmegimme]

In my experience this is incorrect. If a competitor can show a trademark is 'generic' they can apply to have it rescinded. If other parties use a trademark, without your preventing them, then the trademark will eventually become generic - and you will lose it.

I'm certain this is the case in US law, and suspect much the same applies worldwide.

I'm going to have to disagree with you on this one. You're correc that you can apply to have another party's TM expunged if they fail to show use, but it would be extremely difficult to have their TM stricken from the register on the basis of being "generic". The generic argument only really falls into place when first applying for the mark, not when its already registered.

EDIT - having said all that, there have been examples of which Paul T is speaking of..namely things like the term "email", which were initially included in a few trademarks, but were stricken due to the generic value of the term in modern society. I should have said above that Levi's, specifically, wouldn't likely fall under these terms, first of all due to the fact that we're discussing design-marks, not word-marks, which don't become genericized terms. If any of this was possible in Levi's case, it would have already been pursued by many companies to avoid all the current lawsuits.

[Paul T]

I do not claim my comments are legal advice to be followed! my knowledge re clothing trademarks comes only large clothing companies who might well have vested interests. I speak only as one who has been threatened several times with a lawsuit... from Portaloo...

It is a fact that the reason companies like Xerox, Hoover, and countless others are so aggressive about enforcing their own trademarks - sending lawyer's letters every time they are used incorrectly in a publication, and I have had plenty of them - is precisely because if they are used incorrectly without being challenged, then Xerox, Hoover and, yes, Portaloo will lose their status as exslusive registered trademarks - ie someone else will claim that Xerox is a generic term, and thus launch their own, say, Gimmegimme xerox machine or Gimmegimme portaloo. My belief is that this would ultimately prevent Xerox from renewing the trademark on their own name - but even if this is not thecase, a trademark that can be used by others is of little value.

It has always seemed outrageous to me that I cannot use the word portaloo in a generic sense, but the law is on their side.

[gimmegimme]

I do not claim my comments are legal advice to be followed! my knowledge re clothing trademarks comes only large clothing companies who might well have vested interests. I speak only as one who has been threatened several times with a lawsuit... from Portaloo...

It is a fact that the reason companies like Xerox, Hoover, and countless others are so aggressive about enforcing their own trademarks - sending lawyer's letters every time they are used incorrectly in a publication, and I have had plenty of them - is precisely because if they are used incorrectly without being challenged, then Xerox, Hoover and, yes, Portaloo will lose their status as exslusive registered trademarks - ie someone else will claim that Xerox is a generic term, and thus launch their own, say, Gimmegimme xerox machine. My belief is that this would ultimately prevent Xerox from renewing the trademark on their own name - but even if this is not thecase, a trademark that can be used by others is of little value.

You're correct that its possible for TM's to become generic, and as such lose their value as a brand identity...in this case specifically (Levi's), I doubt it would be likely. Upon renewal, you're only obligated to sign an affidavit saying you're still using the mark, for the cancellation due to genericism, an application would have to be filed by a 3rd party, and a very lengthly (and costly) procedure would encur. Of course, anything's possible! (which is my disclaimer...and I'm not giving legal advice either btw ).

And what's Portaloo? :confused:

edit - like a toilet?