Wendel Rosen's Intellectual Property Blog

No Ifs, Ands or Butt Pockets: Do “U” See Trademark Infringement?

Guru Denim, Inc. dba True Religion Brand Jeans recently sued Burlington Coat Factory Warehouse Corporation for selling jeans that allegedly infringed on True Religion’s “U-shaped” pocket design.  Interestingly, this is not the first time that True Religion filed suit against Burlington for infringement of its “U-shaped” marks.  True Religion has used its “U-shaped” marks since as early as 2002 and has registered various “U-shaped” marks with the United States Patent and Trademark Office since 2006.  Here are a few of True Religion’s trademark registrations for the “U-shaped” pocket design:

3147244

(U.S. Registration No. 3,147,244)

3561465

(U.S. Registration No. 3,561,465)

3561466

(U.S. Registration No. 3,561,466)

According to the lawsuit, Alpha Garment, Inc. supplies Burlington and various nationwide retailers with the infringing jeans.  Exhibit A below is an example of the alleged infringing use of the “U-shaped” pocket design supplied by Alpha and sold to consumers by Burlington.  True Religion claims that use of the pocket design as shown in Exhibit A is “substantially indistinguishable and/or confusingly similar” to its “U-shaped” marks.  See Exhibit B below for an example of True Religion’s “U-shaped” pocket design.

Jean Pocket

(EXHIBIT A)

Exhibit B

(EXHIBIT B)

What do you see?  Arguably based on the side by side comparison, the pockets are somewhat similar.  However, the pocket designs are not identical.  The pocket design in Exhibit A appears to be a stylized intersecting “X-shape” rather than a rounded continuous “U-shape” as in Exhibit B.  Nevertheless, whether Exhibit A is likely to cause consumer confusion as to the source or origin of goods is one of the primary questions that the parties will need to address.  If Burlington loses, it may be ordered to pay monetary damages to True Religion and to cease selling the infringing jeans.

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