Are these pocket stitching designs ‘identical or near identical – essentially the same and not just similar’?
Or do they merely possess a degree of similarity such that the top design impairs the distinctiveness of the lower design?
If you asked the first question, and answered no, then you were the District Court, and you dismissed Levi’s dilution claim against Abercrombie & Fith.
If you asked the second question, and answered that you don’t know, then you were the Ninth Circuit noting that the standard of similarity plaintiff needs to show under the Trademark Dilution Revision Act is different than the standard under the original Federal Trademark Dilution Act, reversing the decision in favor of Abercrombie and remanding the case.
And if you don’t like the new standard because it’s a bit tautological, don’t blame the Ninth Circuit, blame Congress.