Wrangler takes Crocker to the cleaners

For the past 50 years jeans manufacturer Wrangler Apparel Corp has been using a W-shaped stitched pattern on the back pockets of its products. The double-stitched W is a registered trademark.

Wrangler has huge sales worldwide, including tens of millions of shekels-worth of sales in Israel. Through satellite broadcasting, Israeli pay-television viewers can see foreign advertising showing the W on denim clothing. Unfortunately, Wrangler's W symbol is registered in Israel only for overalls, short coats and Western-style shirts (Israeli Trademark 50,909).

Crocker, an Israeli jeans manufacturer, decorated the back pockets of its jeans with a design that is arguably a W shape.

Wrangler has previously filed aggressive actions against jeans manufacturers Lucky and Kenvelo. As Crocker uses a similar mark in a similar place, counsel for Wrangler sued on the grounds of: 

• Registered trademark infringement.
• Well-known mark infringement.
• Passing off.
• Dilution.
• Unjust enrichment.

In its defence, Crocker stated that it has been selling jeans since 1984 and that its stitched pocket design was different from Wrangler's. Crocker has obtained Israeli Trademarks 101,601 and 118,244 for its stitching designs. It argued that Wrangler could not claim trademark infringement since it had not taken advantage of its opportunity to oppose Crocker's marks.

Wrangler conducted a face-to-face survey of the jeans-wearing public aged 18 to 70, and then surveyed a control group online. Crocker enlisted Dr Mina Tzemach, a recognised Israel authority on public opinion surveys, to try to demonstrate that the survey was meaningless since the survey and the control group had been conducted differently. Although the results looked impressive, Tzemach explained that they did not take standard deviation into account. Consequently, Crocker's counsel asked the court to give the survey minimum weight.

In ruling, Judge Ori Shaham upheld the claims of: 

• Registered trademark infringement.
• Well-known mark infringement.
• Passing off.
• Unjust enrichment.

He decided that there was no need to go into the issue of dilution. He also found Crocker's owner to be directly and personally responsible, since he was closely involved in the business.

In his ruling, the judge first referenced the basic law, philosophy and case law of the various torts, then applied his analysis to the specific case. He issued an injunction against Crocker to prevent it from using a W-like symbol, and ordered it to surrender its accounting books for inspection by Wrangler. Wrangler was awarded NIS250,000 (almost US$70,000) in damages and NIS100,000 (more than US$27,000) in legal costs.

(TA 1999/05 Wrangler Apparel v Crocker 1991, before Judge Ori Shaham, 11th September 2011.)