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FL: Can you briefly tell us about the Saipan workers' case against Levi's? What causes of action were they alleging and how the case was eventually resolved?
The case was a class action against many of the largest and most successful apparel companies in the world, alleging that independent contract manufacturer factories in Saipan had subjected garment workers to unlawful sweatshop conditions and inhumane living conditions. The case lumped all workers from all factories together, claiming that they had been victimized by torts in violation of international human rights standards and by a RICO enterprise among all the apparel companies. All of the defendants but Levi Strauss settled. Levi Strauss felt that its efforts in Saipan were appropriate and eventually won a judgment on the human rights based tort claims and a voluntary dismissal of the RICO claims.
FL: How were you able to get a dismissal for Levi's when most of the other defendants settled and contributed to a $20 million settlement fund?
I would like to say that it was due to great lawyering, but really it was due to the perseverance and determination of our client that it had acted properly in this matter.
FL: Plaintiffs in this case used some novel legal theories for their case. How likely will a similar type of lawsuit be filed in the future and what can a potential defendant do to limit their likelihood of being sued or being held liable?
One of the reasons that Levi Strauss was reluctant to settle was a concern that the plaintiff's human rights theory could be repeated in all kinds of other circumstances. Although the plaintiffs dismissed their appeal before it was decided, we still have the district court's judgment that this claim lacked merit. Time will tell if other cases are brought and whether other courts will follow the court in Saipan.
FL: How did someone with a background in trademark litigation and antitrust get involved in a case involving workers' rights and labor conditions in Saipan?
Well, it really goes back to the broad view of intellectual property that I share with my clients about protecting their famous brands. When Levi Strauss pioneered the effort to assure that workers were met with reasonable fairness in the workplaces where its garments are produced, it was primarily an issue of corporate responsibility. But, it also reflected the view that a subpar workplace was inconsistent with the image of the Levi's trademark. When it came time to defend the Company's efforts to assure that workplace standards were being met, it was natural for me to get involved since the politics of this issue very much intersect with brand health. We were gratified that Levi Strauss's programs prevailed in the lawsuit.
FL: How do other areas of the law interact with defending a client's trademarks or brands?
An effective brand is one that reaffirms a consumer's expectations of it. The advertising, marketing and selling of a brand all work together to, hopefully, create a coherent and familiar picture for a potential customer. Product marketing and distribution - important tools to reaffirm consumer's perception of a trademark - are governed by antitrust and other trade regulations. I have spent a good deal of my "trademark protection" efforts making sure - or demonstrating in litigation - that clients' distribution and advertising programs fit within the requirements of these laws. Many companies market their brands within restricted geographies and one obvious intersection between trademark and distribution law occurs when we make efforts to prevent grey marketing of brands outside their intended geography. As markets continue becoming increasingly global, it will be interesting to see how far these tools can stretch.
FL: With increasing globalization, what would you advise potential clients to do as they expand into new markets to protect their trademarks and brands?
Clients really need to think about this issue before they expand into new markets. In many parts of the world, including the United States, trademark rights depend on using your brand in local commerce. While you might "reserve" your rights for a time, you need to make sufficient use to sustain the mark as your own under the local law. A U.S. brand owner may be very disappointed if they go to other regions of the world with their products only to find that an enterprising local has beat them to their mark. More than one client or opponent has met with unexpected expenditures to clean up trademark issues when they have globalize their brands.
FL: Do you foresee more trademark disputes going to international institutions for resolution and, if so, how would that effect how trademark disputes are litigated?
There already are a number of treaties relating to protection of intellectual property rights, but I think a genuine mechanism for international resolution of these disputes will lag behind the commercial developments that may make such a forum desirable. Even famous trademarks rarely mean the same thing to consumers around the world and, of course, local political interests may have more at stake in permitting activities that we might call an infringement here. So I think it will be a while before there are any global registries or enforcement opportunities.
FL: With increasing globalization, do you see trademark and trade regulation laws in various countries homogenizing or becoming more diverse?
Where trademark law is taking only small steps toward harmonization, other forms of trade regulation appear more coordinated. Certainly the regulatory enforcement agencies have engaged in a significantly higher level of cooperation. The recent proceedings against Microsoft in the EU reflect a lot of work done in the state and federal cases against Microsoft here. Lawyers who are involved in cases like that need to position themselves to take advantage or beware of those developments.
 | Gregory S. "Greg" Gilchrist is a partner in Townsend and Townsend and Crew's San Francisco office. His practice focuses on commercial litigation and pre-litigation counseling, with an emphasis in antitrust, intellectual property, trademarks, and product liability law and has successfully represented a wide range of clients, including small-scale to Fortune 500 companies before state and federal courts. He received his J.D. from Michigan Law School and a B.A. in political science from the University of Michigan. He recently defended Levi Strauss successfully against a class action filed by garment workers in Saipan. |