Monday, April 23, 2012

a gap in their reasoning

Mind the Gap

In Canada, a war is being waged between an adventure travel company which was named G.A.P. Adventures Inc and the US retail company The Gap, Inc. In dispute is the trademark GAP, and of course the overlap between the services of an adventure travel company and that of a retail clothing giant.

The latest battle in the war threw up some interesting comments from the Federal Court. G.A.P. Adventures argued that “online retail store services” were not encompassed by “retail store services”. After all, a retail store is made of the ubiquitous ‘bricks and mortar’, it has showcases and windows and racks of goods, and live shop assistants. Online retailing is about websites, software, coding, click-throughs and shipping.

The Court was not impressed by the argument. It held that the phrase “retail services” is quite broad enough to mean more than operating a bricks and mortar store. The services of a retail store might well include online advertising, tweeting, emailing, and offering goods for sale over the internet:

The phrase ”retail store services” may reasonably be said to mean more than merely operating a brick and mortar building from which one sells goods and services. The services of a retail store in this day and age may well include online advertising, tweeting, emailing customers and prospective customers, and offering goods over the internet, thus giving the customer the convenience of shopping at home. It is the 21st Century equivalent to the 20th Century catalogue shopping and mail order, which arguably are also retail store services.

It’s encouraging to find a Court which is quite familiar with online selling - and tweeting.

G.A.P. Adventures has also lost out to The Gap Inc in the USA, with a New York federal judge ruling that it must change its name in the USA. The basis of the decision was trade mark infringement, though The Gap Inc was unsuccessful in arguing dilution or tarnishment of its marks, or common law infringement. Still, after a battle that began in 2007 when G.A.P. Adventures opened its first US store, it seems that the armies can collect their wounded and retire from the field - in the US at least. Canada may be an on-going war front. G.A.P. was founded in Canada in 1990, 21 years after The Gap's first store opened.

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