# Abercrombie & Fitch Company v. Hunting World, Incorporated

> Court of Appeals for the Second Circuit · February 26, 1976 · 537 F.2d 4

URL: https://www.frixlaw.com/law-library/cases/9462809

## Case

- **Full name:** ABERCROMBIE & FITCH COMPANY, Plaintiff-Appellant, v. HUNTING WORLD, INCORPORATED, Defendant-Appellee
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** February 26, 1976
- **Citations:** 537 F.2d 4
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Friendly, Timbers, Gurfein
- **Cited by:** 756 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9462809

## How later opinions describe it (automated extraction)

- concluding that registration “means not only that the burden of going forward is upon the contestant of the registration but that there is a strong presumption of validity so that the party claiming invalidity has the burden of proof and must put something more into the scales…
- holding that “Safari,” which was an incontestable trademarked term held by Abercrombie, had become a generic term for certain types of clothing, but not when used to refer to boots or shoes
- recognizing that the term “Safari” may be generic and therefore unprotectable when referring to African expeditions but may be a trademark when referring to suburban clothing
- holding that “the Abercrombie classifications apply to trade dress”

## Opinion text

PER CURIAM:
On Petition of Appellant for Rehearing
By petition for rehearing plaintiff-appellant, Abercrombie & Fitch Company (A&F), *15 requested us to alter our opinion filed January 16, 1976, in two respects: one was that footnote 14, p. 13, describing the scope of cancellation of Trademark Registration No. 703,279, be modified by omitting the word “shirts”. The other was that we should not uphold the “fair use” defense, pp. 13-14, as to Hippo Safari and Camel Safari shoes. We called upon defendant-appellee Hunting World, Inc. (HW) to answer.
We agree with A&F that footnote 14 was in error in indicating that Safari had become generic with respect to shirts. Since the mark has become incontestable, it is of no moment, on the issue of cancellation, that, as HW urges, the mark may now be “merely descriptive,” pp. 12-13. HW’s answer adduces nothing to show that Safari has become the “common descriptive name” for this type of shirt; indeed, HW admits never having advertised its own shirts as such. While HW asserts that “the record is clear that the upper garment of the safari suit is referred to interchangeably as a safari bush jacket and as a safari shirt,” the cited pages do not bear this out.
On the other hand we see no force in A&F’s criticisms of the portion of our opinion relating to the fair use defense with respect to Hippo Safari and Camel Safari shoes sufficient to lead us to change the views previously expressed or, indeed, to require further discussion.
The petition for rehearing is granted to the extent of striking the word “shirts” from fn. 14 on p. 13 and is otherwise denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9462809. Public record. Not legal advice.