Abercrombie & Fitch Stores, Inc. v. American Eagle Outfitters, Inc.

280 F.3d 619 (6th Cir. 2002)

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Nature of the Case

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Facts

P is a clothing retailer. It sells its products nationwide through 157 retail stores and a mail-order catalog under the registered trademarks and service marks ABERCROMBIE & FITCH, A & F CO, A & F, and variations thereof. P claims trade dress with respect to 9 features: Abercrombie claims, comprises nine features: 1) Use of the Abercrombie marks, in particular the A & F trademark in Universe Bold Condensed typeface. 2) Use of the word performance on labels and advertising and promotional material to convey the image of an active line of casual clothing. 3) Use of such words and phrases as authentic, genuine brand, trademark, and since 1892 on labels and advertising and promotional material to convey the reliability of the Abercrombie brand. 4) Use of the word outdoor on labels and advertising and promotional materials to convey the image of a rugged outdoor line of casual clothing. 5) Use of design logos, such as the ski patrol cross and lacrosse sticks, and product names for the types of clothing, such as 'field jersey,' to convey the image of an athletic line of casual clothing. 6) Use of primary color combinations, such as red, blue, grey, tan, and green in connection with solid, plaid, and stripe designs, to create a consistent design and color palette. 7) Use of all-natural cotton, wool, and twill fabrics to create a consistent texture palette. 8) The creation of a cutting edge 'cool' image through photographs and advertising and promotional material, such as the A&F Quarterly (the 'catalog' or 'Quarterly'). The catalog is printed on cougar vellum paper, which is unique for a catalog. 9) The creation of a consistent merchandise look in A&F stores through the use of in-store signage and display setups and through the use of the 'Abercrombie sales associate team,' which is comprised primarily of college students. D sells the same types of clothes as does D in its 300 stores nationwide. P claims that D is selling confusingly similar products and marketing them in a way confusingly similar to P's image. P sued D. P introduced a memorandum from D directing American store managers to inspect the windows, lead table, and leaseline signs of P stores every week and report on P's presentation. D declined to contest the allegation that it intentionally copied the various aspects of P's claimed trade dress enumerated in the complaint. The district court granted D's motion for summary judgment in its entirety. According to the district court, trade dress protection is not available when a) the means of dressing the product is functional or descriptive, or b) the claimed trade dress amounts to an abstract image or marketing approach. The court remarked, 'retailers must be free to use common verbal or pictorial descriptions of their goods [including] such matters as showing the clothing in 'cutout' fashion using combinations of standard colors universally-recognized patterns and common fabrics in clothing design and manufacture. All of these factors are both generic and descriptive .'