Jordache Enterpises, Inc. v. Hogg Wyld Ltd.

828 F.2d 1482 (10th Cir. 1987)

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Nature of the Case

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Facts

P is the fourth largest blue jeans manufacturer in the United States. P's items are identified by one of several registered trademarks, including the word 'Jordache' printed in block letters, the word 'Jordache' printed in block letters and superimposed over a drawing of a horse's head, and a drawing of a horse's head alone. Some products are identified by the word 'Jordache' written in script lettering, a mark which has not been registered. P jeans are now sold in retail outlets throughout the world. P has licensed Shaker Sport to manufacture and market P jeans for larger women. Shaker Sport has expended substantial resources in advertising these jeans, and it had sold between 33,000 and 60,000 pairs by 1985. In 1984, Marsha Stafford and Susan Duran formed D, now Oink, Inc., for the purpose of marketing designer blue jeans for larger women. They designed a product, selected a manufacturer, and ultimately sold over 1,000 pairs of jeans. Sales were limited to specialty shops in several southwestern states and to acquaintances or others who heard of the product. The women have not directly advertised their jeans, although several retailers have done so. The name of the Oink, Inc. blue jeans gave rise to this suit. Names suggested at one time or another for the jeans by Stafford, Duran, or others included 'Thunder Thighs,' 'Buffalo Buns,' 'Seambusters,' 'Rino Asirus,' 'Hippo Hoggers,' 'Vidal Sowsoon,' and 'Calvin Swine.' Other names and marks were suggested as a take-off on Stafford's childhood nickname, 'lardass.' This nickname inspired ideas such as 'Wiseashe' with a picture of an owl, 'Dumbashe' with a picture of a donkey, 'Horsesashe' with a picture of a horse, and 'Helium Ash' with a picture of a balloon. The women decided to name their jeans 'Lardashe.' P sued D alleging trademark infringement in violation of the Lanham Trademark Act, the New Mexico Trademark Act, and common law. The court held that no trademark infringement had occurred on any of the alternative claims. P appealed.