Fruitful Decision : Malibu Sandal Company Wins Court Fight Over Fruit Name

In the battle of a Malibu sandal kingpin versus an American underwear giant, the flip-flops have defeated the briefs and won the right to be called Fruit.

After eight days of hearings, Fruit of the Loom has been defeated in its attempt to get a federal court in Los Angeles to stop a Malibu-based company from calling its fruit-festooned sandals “Fruit Flops” and its decorated bustiers “Fruit Cups.” The Bowling Green, Ky., underwear maker claimed the products’ maker, Two Left Feet, was infringing on its fruit trademark.

Ken Girouard, zori-monger and president of Two Left Feet, said Monday that the victory was the culmination of a long fight, but he’s still mad. “I think it’s disgusting for a big corporation to pick on small businessmen,” the former advertising executive said.

Judge William Keller found in favor of Two Left Feet last week, saying that its products did not dilute the value of Fruit of the Loom’s trademark.

Girouard started Two Left Feet after being laid off from a Madison Avenue ad firm in 1987. By 1990, the firm had $90,000 in annual sales. That’s not much compared to Fruit of the Loom’s $1.4 billion in sales, but not bad for a cottage industry that had a dog groomer, a waitress and a country and western singer working part time sewing plastic grapes and flowers onto plastic thongs.

According to Girouard, Fruit of the Loom argued that the thongs were in bad taste and were bad for its image. “In court, I said they were ‘kitsch’ and the judge says, ‘What’s kitsch?’ So we look it up in the dictionary and it says something about bad taste and then they used that against us.”

Fruit of the Loom, which is appealing, declined to comment on the case “because litigation is continuing,” a spokeswoman said.

The company also attempted to prove that the Fruit Flops were sold in the same stores as Fruit of the Loom products, which would cause confusion over the names. Girouard’s products are sold mostly in upscale specialty stores, while Fruit of the Loom garments are sold mainly in department stores and discount chains.

But Fruit of the Loom lawyers presented as evidence a pair of its men’s briefs that it said were sold in Fred Segal, a trendy Melrose clothing store that also carried Fruit Flops. However, according to Girouard, the briefs had been altered to be worn as a woman’s halter top, with a hole cut out for the head so the elastic formed the bottom of the garment. The judge indicated he was not persuaded in favor of the plaintiff on this point.