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Levi’s Red Tabs Protected as Part of Composite Mark

Tuesday, 28 May 2013

The European Court of Justice’s (ECJ) decision in the seminal case of Colloseum Holding AG v. Levi Strauss & Co. [2013] has provided big brand owners with welcome relief.

The ruling on composite trademarks means that brand owners with distinctive elements of their slogans and packaging designs that have become well-known and instantly recognisable will not lose their trade mark protection where the mark is normally used as part of a composite mark.

Composite Marks

Composite marks are where a mark is used in conjunction with another mark.

The landmark decision means distinctive design such as Levi’s red tabs will be afforded protection despite the fact the trade mark for the design is not normally used on its own, but in conjunction with the brand’s other marks, the word Levi’s in this case, to create a distinctive and recognisable logo.

Levi’s and Red Tabs

Levi Strauss, the well-known jean maker took action against Swiss firm, Colloseum Holdings for breaching its trade mark rights.

Levi’s registered trademarks included the plain red cloth tab (the component mark) which takes up a certain place on the pocket of a pair of jeans and also the plain tab combined with the printed word ‘Levi’s’ (the composite mark).

Because Levi’s had a separate trade mark for the plain tab which it never used on its own, only in conjunction with the word ‘Levi’s’, Colloseum argued a trade mark over the component mark contravened EU ‘genuine use’ requirements and should be cancelled for non-use.

Colloseum and Red Tabs

Due to Levi’s reputation and being an instantly recognisable brand, it argued any such use of a similar red tab on a garment, would infringe its trade mark rights.

Colloseum produced a pair of jeans with a similar red tab on the pocket of their jean, bearing Colloseum’s own brand on the tab. This was held to be an infringement of Levi’s trade mark over the component mark.

The ECJ declared on the subject of ‘genuine use’ that the tab was an integral part of the Levi’s brand even though it had not used the component mark on its own.

Genuine Use

The ‘genuine use’ requirement will be met where such a component mark becomes distinctive as part of its use in a composite mark. Because the mark had become so widely recognised through composite use it was seen to have ‘genuine use’.

The component mark formed part of the composite mark and was only ever used in conjunction with one of Levi’s other trademarks. Due to the fact it was used in this manner it was argued the ‘genuine use’ test would be satisfied as people would undoubtedly associate goods designated by the component mark with the Levi’s brand and the component mark was perceived as indicating origin.

A Victory for Big Brands

Brand owners with distinctive elements to their brands including slogans and packaging designs that form components of composite marks will be afforded protection under trade mark laws. This is a significant victory for big brands with the most recognisable marks.

If you need advice regarding trademarks or other intellectual property, please contact James Crichton via e-mail or by telephone on 0207 611 4848.