September 24, 2019

Levi's Keeps Tabs on YSL's Pockets

Levi Strauss & Co. and Yves Saint Laurent have reached settlement in the Northern District of California lawsuit filed by Levi’s over YSL’s use of pocket tabs on jeans. Last November, Levi’s filed suit against YSL for trademark infringement, alleging that YSL’s use of pocket tabs on jeans would create a likelihood of consumer confusion in the marketplace. Though YSL’s tabs were black and did not bear the mark LEVI’S, Levi’s alleged that consumers would be confused as to the source of the jeans or would mistakenly assume there was a “relationship between YSL and Levi’s.”

The question of whether a likelihood of confusion exists hinges on whether consumers are actually going to be confused in the marketplace. To assess the question of likelihood of confusion, courts look at a number of factors including the similarity of the marks, similarity of the goods at issue, whether there has been actual confusion, the sophistication of the purchasers, and the channels of trade where the goods at issue are sold.

Levi’s has attached its little red tabs bearing the company’s LEVI’S mark on it since 1936 and claims trademark rights in the tab. According to the Levi’s website, Levi’s started adding different-colored tabs to other Levi’s clothing items in the 1950s. For instance, Levi’s added a black tab with gold lettering for clothing treated in its then-new Sta-Prest process, which guarded against wrinkles. The concept of the double-sided tabs also came to life in the 1950s, when Levi’s started printing the mark LEVI’S in white lettering on both sides of the tabs. In the early 1970s, Levi’s changed the appearance of the lettering on the tabs, and instead of using all capital letters, the mark appeared in title-case.

Levi’s has been vigilant in attempting to enforce its trademark rights and has had success settling out of court. In April of 2018, Levi’s sued LVMH-owned Kenzo, claiming that it “manufactured, sourced, marketed and/or sold substantial quantities of jeans, shorts, overalls, and other garments bearing pocket tab devices that are highly similar to LS&Co.’s Tab trademark” through its La Collection Memento N2 archive denim capsule collection. Levi’s also brought suit against the British luxury brand Barbour last June and against Vineyard Vines in 2017 for trademark infringement as a result of the use of tabs on clothing.

Some critics have called Levi’s a trademark bully for its enforcement tactics. Others deem it a model for policing the marketplace and enforcing rights. Levi’s claims that its tab is one of the world’s most frequently copied trademarks and protecting the valuable tab “requires some extra moxie.” To stake a claim in its tab design, Levi’s allegedly prints a certain number of products with a red tab bearing just the ® symbol on it. Levi’s claims that this shows that Levi’s owns trademark rights in the red tab, and not just the wording. The rumor is that one out of every 10 jeans has a plain red tab. I’ve never seen a pair of Levi’s with a plain tab, but I will certainly be rifling through the Levi’s table to look for one the next time I’m out shopping.