Byline: Vicki M. Young

NEW YORK — The sniping between two of the nation’s hottest specialty chains shows no sign of abating.
In the Copycat Contretemps between Abercrombie & Fitch and American Eagle Outfitters — two rivals with sometimes similar marketing approaches — there were two key developments Tuesday:
Despite losing a couple of rounds in court already, A&F — which had charged American Eagle with copying its styles and marketing — said it wasn’t about to fold its tent and slink away quietly. It plans yet another appeal.
American Eagle bared its own talons and said A&F isn’t exactly an innocent when it comes to co-opting someone else’s efforts, that it had, in fact, copied advertising themes from — guess who? — American Eagle.
The background to all of this is the high-profile lawsuit filed in June 1998 by A&F, charging that American Eagle has copied its “trade dress” — elements in design and advertising that create a distinctive, recognizable image.
Two months ago, U.S. District Court Judge John D. Holschuh threw the suit out. A&F asked him to reconsider. Last Friday, Holschuh said he was sticking to his original decision.
That isn’t stopping A&F.
“We are planning to file an appeal,” an A&F spokesman said Tuesday. “We disagree with the court’s decision.”
American Eagle, meanwhile, cast some aspersions of its own. A spokeswoman for Weil, Gotshalk & Manges, its law firm, told WWD that A&F has in the past copied American Eagle’s ad themes. Both companies, she said, used models in paint-spattered jeans, with shirts untucked. The American Eagle ad was part of a back-to-school campaign in 1996, she said, adding that the A&F ad appeared a year later.
In A&F’s original suit, it claimed that the words, color and format in American Eagle’s promotional materials and on the apparel were too much like its own, and that the similarity confused shoppers.
A&F was particularly miffed that American Eagle used phrases such as “authentic” and “vintage sweatshirts,” along with logos such as lacrosse sticks and ski patrol crosses, which A&F uses on its own apparel. A&F even claimed proprietary rights to primary color combinations and striped patterns on shirts.
Judge Holschuh, however, ruled that the elements about which A&F complained could not be protected as trade dress because they were generic, not unique, and that to bar other retailers from using similar methods would be “unduly competitive.”
Alleged copycatting of the trade dress of another company’s marketing and merchandising approach is an issue that’s taking on more importance in a highly competitive retail sector as companies fight for market share.
Last month, cosmetics retailer Sephora sued Federated Department Stores and its Macy’s West division, charging them with copying Sephora’s store layout and shopping experience. The charges concern Macy’s new Souson freestanding, open-sell fragrance and cosmetics stores, as well as recently renovated beauty departments in Macy’s stores in California. The suit is still pending. Legal specialists have noted that such suits aren’t easy to win.
When Holschuh upheld his original decision on Friday, he said that A&F submitted as new evidence of confusion alleged customer comments from the company’s web site indicating that merchandise sold by American Eagle was similar to items sold by A&F. But that evidence wasn’t sufficient to merit a reconsideration, the judge ruled.
Holschuh reiterated in Friday’s decision that the marketing approach used by A&F was reflective of what other retailers do when marketing to younger consumers, and that the law doesn’t allow A&F to exclude other retailers from using a similar approach. Those points, however, weren’t addressed by the evidence submitted to the court in A&F’s request that the judge rethink his decision, according to the ruling.
A&F also claimed that it received e-mail from customers asking whether the two chains are under the same ownership. That issue was not material to the court’s decision, Holschuh wrote, because even if there was confusion, it was not due to any infringement of trade dress rights.