28
Aug/03

That's Some Catch, That Catch-22


I’m getting calls and letters asking me to blog the Abercrombie ’22’ matter, in which Abercrombie is suing a competitor, American Eagle Outfitters, for its alleged infringement of Abercrombie’s claimed common law trademark in the number 22 (arising from use in its HOLLISTER line).  Why this suit is getting press may be due to a popular perception that trademark owners unreasonably take things out of the public domain.  If Abercrombie establshes a monopoly in 22, the rest of us will have to go straight from 21 to 23.

As a trademark case, the issue is not novel.  As Prof. McCarthy notes in section 7.15 of his treatise:

As early as 1882, the courts recognized that numbers, like any other visual symbol, could function as a mark:

[I]f for a long period of time he had used the same figures in combination, as “3214,” to distinguish his own goods from those of others, so that the public had come to know them by these numerals, he would be protected (citation omitted).

Numbers, like any symbol, are capable of being descriptive of the goods on which they are used, and thus require proof of secondary meaning for protection or registration. For example, the mark “76” used by Union Oil Co. was held to be descriptive of gasoline in that 76 is within the range of numbers used to indicate octane and Baume ratings of gasoline.  Similarly the mark “pH 3.5″ was held descriptive of the degree of acidity of a drug. (citations omitted).

My unscientific speculation is that Chanel’s trademark, No. 5, is the most famous number trademark.  Pizzeria Uno’s trademark lawyer has contacted me to suggest that UNO is the most famous number trademark.  Levi’s owns 501 and 505 (it shares 505 with a cleaning solution).  And let’s not forget 007.

Abercrombie will or will not be able to establish that it has acquired secondary meaning in 22 as its trademark. Assuming it can, Eagle is or is not infringing that trademark.  A possibly relevant fact is that Abercrombie reportedly has sued Eagle three times recently (and lost each time). 

A case of a manufacturer, Fubu, that was able to prove that it had secondary meaning in a number trademark, 05, was reported here, here.

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