Levi’s Sues Over Pocket “Tab”October 10, 2017

Can you use of a piece of fabric no bigger than a fingernail to constitute a trademark infringement?  Levi’s appears to think so.

Late last month, Levi Strauss & Co. filed a federal lawsuit in San Francisco against Vineyard Vines, LLC alleging the clothing company has been infringing Levi’s trademark rights by sewing a small “tab” onto the back pocket of its jeans. Levi’s claims that it has been sewing “tabs” onto the back pocket of its jeans since 1936 and that such tabs have become a “famous and recognized” trademark of Levi’s pants. Accordingly, it believes Vineyard Vines’ inclusion of a similar size and shaped tab, bearing the company’s whale logo, on the back pocket of its jeans constitutes trademark infringement.

Chances are, if you own a pair of Levi’s or have seen someone wearing a pair, you have noticed the “tab” Levi’s is referring to. This tab, which is normally red and bears the word “Levi’s,” was allegedly added for the very purpose of allowing consumers to easily identify Levi’s pants. Levi’s thus alleges that Vineyard Vines’ use of a similar tab will confuse consumers.

While a small tab sewn on to the back pocket of a pair of pants may seem like an unusual trademark, it illustrates the underlying purpose of trademark law. Trademarks are designed as source identifiers, or as a way for consumers to quickly and easily distinguish the source of good or services from those of another. Classic examples of this are words like “Coca Cola” and “Pepsi.” But this function can also be accomplished by non-word marks, like a distinctive tag affixed to clothing.

With this in mind, it is clear that even something as minor as affixing a small piece of fabric to the back pocket of a pair of pants can constitute trademark infringement. The ultimate question, however, is whether it does here. Notably, do differences between Levi’s and Vineyard Vines’ tabs—such as their color and logos—differentiate the two enough for the latter to avoid liability for infringement? Or are Levi’s rights in its tab trademark so extensive as to cover virtually any pocket tab? This remains for the court or jury to decide.

Nicholas Krob is an Intellectual Property Attorney in the Litigation Practice Group at McKee, Voorhees & Sease, PLC. For additional information please visit www.ipmvs.com or contact Nick directly via email at nicholas.krob@ipmvs.com.