Bullwinkle
Abercrombie’s logo looks nothing like this.

People sometimes ask Blawgletter how Blawgletter can blawg and keep a powerhouse law practice humming at top speed at the same time.  Our usual answer?  "We are proud of our efforts to secure the Nation and are reaping the benefits of the momentous changes to the counterterrorism and counterintelligence programs we instituted during the last year with your support."

Which brings us to mooses.  More particularly, it draws us into a fight about whose moose logo can beat the other’s.  Abercrombie & Fitch designed two moose logos (one in "outline" and another in "silhouette") to brand some of its togs.  Moose Creek, a competitor, started using a moose logo, too, on its shirts, jackets, and other wearing apparel.  Abercrombie sued for trademark infringement, but the district court denied its application for a preliminary injunction.  The Ninth Circuit vacated the denial and remanded for reconsideration in light of the court’s legal rulings.  Abercrombie & Fitch Co. v. Moose Creek, Inc., No. 06-56774 (9th Cir. May 22, 2007).

Those rulings concerned a previous bout of litigation between Abercrombie and Moose Creek.  In the earlier case, Moose Creek accused Abercrombie of infringing its trademark in a different sort of moose logo — one that included the word "moose".  The parties settled their dispute, but in the new lawsuit the district court didn’t cotton to what it saw as Abercrombie’s positional flip-flops. 

The Ninth Circuit didn’t share the district court’s perturbation at the changes in position, holding that circumstances had changed and that Abercrombie simply altered its position accordingly.  The court therefore rejected the district court’s conclusion that Abercrombie had "judicially estopped" itself from certain arguments in support of a preliminary injunction.

Barry Barnett

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