Skip to main content

Gap Files Motion to Dismiss Part of Patagonia’s Lawsuit

Last week, Gap filed a motion to dismiss in a Northern California U.S. District Court, where on March 28 the Honorable Trina L. Thompson will decide whether to grant the defense’s motion to throw out a portion of a trademark infringement lawsuit filed by outdoor outfitter Patagonia.

At issue is the Patagonia Snap-T pullover fleece, complete with P-6 logo, a serration modeled after Mount Fitz Roy along the Chile-Argentina border. Patagonia cried foul over Gap’s snap pocket design on its fleece featuring a rectangular label with the words “GAP ORIGINAL” above mountains in a different silhouette than Patagonia’s.

In attempting to win the partial dismissal, Gap attorneys cited 14 incidences of precedent in an 11-page court filing, essentially arguing that just because the designs may look similar, the clear difference in the name establishes and distinguishes it as a separate brand.

Ryan Bricker, an attorney representing Patagonia said the motion to dismiss covers only the plaintiff’s
“assertion of trademark rights and the Patagonia word mark.”

“Trademark similarity is measured on three levels: sight, sound, and meaning, and courts must consider the marks as ‘they are encountered in the marketplace,’” attorneys for the defense wrote.

Related Stories

At left, Patagonia’s Snap-T pullover fleece, and at right, a Gap Original fleece. A judge in California ruled in favor of Gap’s motion to dismiss Patagonia’s trademark infringement lawsuit last week in U.S. District Court.

“While the Complaint contains allegations of similarity with respect to the first two elements—allegations which Gap disputes—it does not allege that Gap has used any mark similar to Patagonia, nor could it since Gap markets its product under its well- known GAP trademark,” defendants wrote in their motion. “As the Ninth Circuit has held, ‘Pepsi-[Cola]’ does not infringe Coca–Cola’s ‘Coke.’ Nothing further need be said.”

In its proposal to dismiss, defendants wrote, “Plaintiff Patagonia, Inc. has failed to state a claim with respect to the infringement of its Patagonia mark or any similar designation… To include not only ‘its distinctive P-6 logo’ but also multiple trademarks for the word Patagonia, The Complaint does not allege that GAP is using or has used ‘Patagonia’ or any similar mark in connection with the sale of its goods.”

Patagonia’s original complaint argued that Gap’s long history of collaborations with other brands, including Balenciaga and Yeezy, would mislead consumers into believing its fleece was part of a partnership with the B Corp brand.

Should Judge Thompson agree with Gap at a hearing slated for March 28, the portion of Patagonia’s suit as it relates to the word trademark. Bricker said that even if that were the outcome, Patagonia’s case would largely remain intact.

Gap has not yet filed a dismissal based on Patagonia’s trademark for the Snap-T fleece or the P-6 image directly, only that its sweater is observably different from Patagonia’s.

In October, Patagonia sued Walmart, the nation’s biggest retailer, for infringing on the design of a colorful trout on T-shirts.

In that case, Patagonia accused the nation’s largest retailer of copying its fish design, but in December, Walmart fired back with a motion to dismiss. It denied each of the plaintiff’s claims and argued that though there were similarities, its use of the fish design in question fell under “protected First Amendment expression,” and that the use of the fish image “constitutes fair use.

Neither Gap nor Patagonia responded immediately to Sourcing Journal’s requests for comment.