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Here’s How Walmart Struck Back at Patagonia’s Lawsuit

In October, Patagonia hit Walmart with a lawsuit claiming the low-cost retail giant was selling T-shirts with graphics strikingly similar to Patagonia’s patented P-6 trout image, complete with the distinctive mountain ridge running up from the fish’s belly. Instead of Patagonia beneath the image, however, the Walmart shirt reads, Montana.

This, Patagonia, contended, was out of bounds so the B Corp sued on seven counts, including trademark infringement, copyright infringement and unfair competition.

Last week Monday, however, Walmart came back swinging, filing a nine-page document with the U.S. District Court in Central California’s Western Division, which could set the stage for a prolonged legal showdown, and perhaps even a jury trial.

On 60 occasions in the document, Walmart attorneys reply to each accusatory paragraph of Patagonia’s filing document with impartial defiance: “Walmart is without sufficient knowledge or information to form a belief as to the truth and accuracy of the allegations therein, and, on that basis, denies every such allegation,” and to other charges heightens the tenor of the repetition to say, “Defendant denies every such allegation.”

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The retailer does, however, on the very first page, admit that the two shirts look very much alike.

“Walmart admits to selling items that look like the item depicted in the image in said paragraph; however, other than said admission, Walmart generally and specifically denies every such allegation,” the document reads.

Walmart attorneys later ask the judge to dismiss the case entirely based on “protected First Amendment expression,” and that the use of the fish image “constitutes fair use.”

In other words, Walmart attorneys are conceding there are great similarities between the designs, but not so as to rise to the level of the legal requirement for trademark infringement or unfair competition, which were two of the seven charges in Patagonia’s October complaint.

America's biggest retailer defiant as it admits shirts look alike, but makes affirmative defenses citing free expression and fair use
The Walmart shirt in question, left, and Patagonia’s trademark registration of the P-6 brand. (Twitter: Clarissa Harvey, Trademark Attorney)

Also named in the complaint was Robin Ruth, a New York-based apparel brand which produced the shirts.

The company’s P-6 logo has previously been the subject of various lawsuits, most recently with licensed apparel wholesaler Mad Engine Global and Linda Finegold, an online retailer. More recently, the company sued Gap for allegedly copying its patch pocket on fleece pullovers. Those patch pockets included images of the famous fish, which Patagonia said has been a part of their brand since at least 1973, depicting the peaks of Mt. Fitz Roy, a range straddling the Argentina-Chile border.

Meanwhile, Walmart remains embroiled in a dispute with Vans, though last year it reached a settlement agreement in Kanye West’s Yeezy counterfeit case. It along with Kohl’s and Macy’s was named in a facial recognition lawsuit earlier this year.