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The owner of a famous mark need not prove that a junior mark is "identical or nearly identical" in order to be entitled to an injunction under the Federal Trademark Dilution Act, according to the Ninth Circuit, which joins the Second Circuit as the only other Federal appeals court to have addressed the issue. In Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., The Ninth Circuit held that the owner of the famous mark need only prove that the junior mark is "likely to impair the distinctiveness of the famous mark." In so holding, the appeals court reversed and remanded a district court's holding in favor of Abercrombie, suggesting that Levi Strauss was likely to win its case seeking an injunction against Abercrombie's use of arched stitching on its Ruehl jeans. Levi Strauss claimed use of its arched stitching since 1873, Abercrombie since 2006.

Tip: Even if a junior mark is not identical to senior mark and might not cause actual confusion, seek a legal opinion regarding whether distinctiveness of a famous mark may be impaired.