ST. GALLEN. The double arc stitched onto the back pockets of Levi’s jeans has survived 150 years of fashion, imitators and litigation. It has not survived the Federal Administrative Court. In a judgment dated 22 September and published on Monday, the St. Gallen court upheld the refusal of the Swiss Institute of Intellectual Property to register the Arcuate Back Pocket Stitching as a trademark for Switzerland, ruling that the design, as filed, is too banal to belong to anyone.
The court’s reasoning runs through the public domain. Simple decorative motifs, the judges held, must remain available to every manufacturer: a pair of curved lines on a pocket is exactly the kind of ornament the clothing trade uses freely, and consumers see decoration, not a badge of origin. Registering such a sign would hand one company a monopoly over a commonplace, and trademark law exists to prevent precisely that.
Levi Strauss argued the arc is anything but commonplace. The stitching has decorated the company’s pockets since 1873, predating the trademark registers themselves, and the San Francisco group has defended it around the world with a persistence the fashion industry knows well. In the United States it ranks among the oldest registered device marks in continuous use. None of that, the court found, answers the Swiss question, which is what the sign means to a shopper in Zurich or Geneva rather than what it meant to a miner in 1873.
The door the judges left open
The defeat is not total. The court faulted the institute for dismissing, too sweepingly, the company’s fallback claim: that the stitching has acquired distinctiveness through use on the Swiss market. Even a banal sign can be registered if its owner proves that consumers have learned to read it as a trademark. The file now goes back to Bern, where the institute must examine that question properly for jeans, trousers, shorts and skirts.
That examination will be fought over evidence: sales figures, advertising spending, market surveys and decades of shop shelves. The company will argue that generations of Swiss customers have identified the arc without reading a label; the institute will weigh how much of that recognition attaches to the stitching rather than to the red tab beside it. Comparable disputes elsewhere in Europe have ended on both sides of the line, which is why trademark lawyers read the St. Gallen judgment less as a verdict than as a map of the road ahead.
A judgment brand owners will cite
Beyond denim, the ruling sketches the limits of what Swiss law will protect. Decorative elements face a high banality bar at registration, and the practical route to protection runs through proof of use, with the surveys and sales data to match. For fashion and design houses, the message is that the register rewards evidence over fame. Levi Strauss can still appeal to the Federal Supreme Court; it has not said whether it will. The arc, meanwhile, stays on the pockets, registered or not, as it has since before trademark law had a word for it.