A slanting strip

The coin pocket. That small patch pocket in the upper right corner of the front pocket of your jeans. Sometimes it has a logo on it. And sometimes it has a diagonally placed rectangular piece of fabric on it. In that case, it's a pair of jeans from the Diesel brand. Because that slanted strip is a trademark.

At least, that is what the Court of Appeal in The Hague said in a case between Diesel and Calvin Klein.

Jeans manufacturer Diesel registered a trademark in the Benelux for a diagonally placed strip on the coin pocket. A so-called position mark, i.e. a trademark that consists of the specific way in which the mark is placed or affixed to the product. (Diesel's trademark registration is shown in the image).

Not a trademark?

Diesel argued that Calvin Klein infringed on Diesel's position mark with the horizontal strip with the Calvin Klein brand name that is placed over the entire width of the coin pockets of CK jeans. Calvin Klein replied that Diesel's position mark should be declared invalid by the court, because a strip of fabric on the coin pocket is very common in the denim market and that Diesel's slanting strip doesn’t deviate from other strips in a significant and distinctive way. No trademark according to Calvin Klein.

The Court of Appeal sided with Diesel. According to the court, the position of the strip is not obvious and the diagonal placement of the strip is indeed significantly different from what is usual in the market. A striking and unusual detail. Therefore, the position mark of Diesel was deemed to be a valid trademark.

No infringement?

But... the court also ruled that Calvin Klein did not infringe on Diesel’s position mark. In this case, with this position mark, it is the precise position that matters, not the label itself. A fabric label or trademark on the coin pocket is in itself very common and as long as the uncommon diagonal position is not the same, there is no likelihood of confusion. For the same reasons, Calvin Klein did not infringe Diesel's copyright on the trademark (as accepted by the court).

A valid trademark, but no infringement. Due to the nature of the position mark and the specific market, the scope of protection is limited to the diagonal placement of the strip, which the Court of Appeal considers extraordinary. The fact that Diesel, in a very crowded market, found a position for a label on a pair of jeans that still could be claimed as an original position mark, is perhaps just as extraordinary.