Abercrombie & Fitch v. Moose Creek, Inc.

I. BACKGROUND

This is the second time in four years that trademark litiga- tion between these parties has reached this forum. The first litigation began in 2004, when Moose Creek filed a trademark infringement action alleging that Abercrombie’s Silhouette Moose Logo was confusingly similar to Moose Creek’s moose marks. Moose Creek sought but was denied a prelimi- nary injunction against Abercrombie’s use of its logo. See Moose Creek, Inc. v. Abercrombie & Fitch Co., 331 F. Supp. 2d 1214 (C.D. Cal. 2004). We affirmed. Moose Creek, Inc. v. Abercrombie & Fitch Co., 114 F. App’x 921 (9th Cir. 2004).

In 2004, during the pendency of the action, Abercrombie developed and began using a new mark, the Outline Moose Logo, in addition to its Silhouette Moose Logo. Since then, Abercrombie has often used these two logos as the only out- wardly visible indicator of origin on a large share of its apparel.

The parties settled Moose Creek’s suit in August 2005. The settlement agreement included provisions that the parties would retain the rights to use their respective moose marks, that they would not use each other’s marks, and that Moose Creek would no longer use its “Moose Creek Polo Moose”…