New USPTO Rules are on the Horizon Under the Trademark Modernization Act

Patagonia Inc. has recently filed an intellectual property lawsuit against The Gap Inc., accusing them of infringing upon multiple trademarks. On November 22nd, 2022, Patagonia, represented by Gregory S. Gilchrist of Verso Law Group LLP, filed the suit in the U.S. District Court for the Northern District of California against the large U.S.-based retailer. At the center of the lawsuit is Patagonia’s “Snap-T” Fleece Pullover.

 The popular outdoor clothing company is claiming that Gap has intentionally and illegally copied several unique design elements of one of their most popular items, citing that Patagonia’s fleece pullover and Gap’s product contain strikingly similar resemblances. These design elements include a vibrant color-blocked pattern, a snap-fastened collar, and a triangle-shaped snap-fastened chest pocket. Additionally, and perhaps the most distinctive similarity, is the placement of a rectangular logo of a mountain silhouette with text found directly above the triangle-shaped chest pocket. Patagonia provided the court with a photo of the Gap’s Arctic Fleece Mockneck Pullover to help illustrate their case that it does indeed contain many of the same unique design features and layout as their Snap-T.

Patagonia has accused Gap of creating a “look-alike product” to confuse intentionally and manipulate customers into thinking they are buying a product made by or affiliated with Patagonia. Patagonia stated, “Gap is selling copies of this design using a highly similar rectangular logo, all designed to make it appear as though Patagonia is the source of Gap’s
products or has collaborated with Gap or authorized use of its trademark and trade dress.” To highlight the uncanny resemblance between the products and potential customer confusion, Patagonia provided a Gap customer review which stated, “I had to zoom in just to ensure that the logo was Gap.”

Patagonia also claimed that they released the design in 1985, later adding the pocket in 1989. Patagonia stated that the Snap-T fleece pullover “has won awards and acclaim, including in dozens of high-profile magazines and media outlets, including Vogue, ELLE, G.Q., Men’s Health, Shape, InStyle, Business Insider, Conde Nast Traveler, NY Magazine.” In addition, the design was featured in an exhibit at the New York Museum of Modern Art. Patagonia asserts that the Snap-T Fleece Pullover is immediately recognized as a Patagonia design and that it is a “well-known” trade dress. Patagonia further elaborated on their belief that Gap intentionally copied their designs by stating, “Given how derivative the Gap Infringements are of Patagonia’s original designs and logo, there is no question that Gap’s copying has been willful and
deliberate.” Patagonia also claims that they had given The Gap Inc. prior warnings regarding the issue and that Gap disregarded these warnings and continued to copy Patagonia’s intellectual property intentionally

.The lawsuit lists several injuries to Patagonia, including deceiving the public into believing that Patagonia is working in collaboration with Gap, damaging Patagonia’s brand and reputation, and “dilution of Patagonia’s famous and distinctive mark by diminishing its distinctiveness and singular association with Patagonia.” Patagonia is seeking compensation for damages, as well as lost profits resulting from the sales of Gap’s products containing the alleged trademark
infringements. Furthermore, Patagonia wants the court to prohibit Gap from further infringement on its products or trademarks in addition to having Gap surrender all its existing products containing the alleged trademark infringements.

While looking at the two items and considering that Patagonia’s Snap-T has been an established product for many years, Gap may have intentionally copied its design. But the court will have to determine that as well as if there was anything protectable being copied. Patagonia asserts it has “trade dress” rights for the design of the Snap-T, but these rights do not appear to be registered. It’s also uncertain which of the design elements would be protected under the claimed trade dress rights, as many brands feature products with similar functional elements. Could the specific configuration and color patterns of these various elements used in the Snap-T be enough to constitute trade dress rights? Or are these design features, even when configured in a specific way, too generic to be able to qualify for that distinction?

The determining factor could be the rectangular logo featuring a mountain skyline. Patagonia has filed many lawsuits in recent years protecting its famous and iconic “P-6 Logo”. The logo is a stylized silhouette of the Monte Fitz Roy, a mountain located on the Argentina-Chile Border in the Patagonian Andes, the region from which the brand gets its name, and has the word “Patagonia” inside the logo. The “Arctic Fleece” logo used on Gap’s fleece pullover and its location above the pocket looks very similar to the Patagonia logo and placement. Gap’s logo is also rectangular, depicts a mountain silhouette, and contains text inside.

The design features, such as the snap-fastened collar and the chest pocket, may not be enough
to prove Patagonia’s case, as these are common features found in many articles of clothing from different brands. The logo alone might not be enough either; although the general format, concepts, and even color scheme are similar, the imagery, text, and font are all different from Patagonia’s P-6 Logo. But the combination of all these factors, the functional design elements of the garment, and the design and placement of the logo could be enough to validate Patagonia’s argument that Gap intentionally created this product to confuse consumers about the origin of the product. And by doing so disingenuously associated their product with Patagonia’s brand. Gap’s “Artic Fleece” logo also seems to be a recent addition to their branding, while Patagonia has used the P-6 Logo for years. Patagonia filed a similar lawsuit in October against Walmart and the clothing brand Robin Ruth USA, claiming the two companies copied a trout-themed variation of the P-6 Logo, producing and selling garments with the word “Montana” on them.




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