i guess it’s gucci?

Hmmm....

Two big names in fashion brands are having a slugging match in the courts - Gucci, the maker of expensive upmarket handbags is alleging trademark infringement by Guess, the maker of less-expensive though not really down-market handbags. Gucci is alleging infringement of a whole range of their design marks, including a green and red stripe design, a square G, the designer’s name in flowing script and a diamond pattern with repeating interlocking Gs. They’re asking for US$124 million in damages. If that seems like a lot of handbags, it is. Gucci alleges that 1,495 Guess products infringed. Of course, it is not just limited to handbags - footwear, jewellery, fashion items of all kinds are in dispute.

Apart from an attraction for the fashionistas, the case raises some interesting points;

Guess accuses Gucci of “sitting on its rights” for seven years. The products have co-existed in the marketplace for some time.
The Guess products sell for a lot less than the Gucci products and on that basis alone are arguably unlikely to be confused - they are aimed at quite different market segments. Guess produced some market surveys to show this.  Do they actually deceive?
Was there a deliberate “scheme” to deceive?

There has been some heavy hitting in the evidence stages of the case, with Gucci trying to prove a scheme of deliberate knock-offs by Guess. Guess’s CEO was cross-examined for four hours. If Gucci does manage to prove a lack of good faith by Guess, that will probably put the win in their court. Guess continues to argue otherwise:  “Gucci uses leather, Guess uses plastic.”

The case is Gucci America v. Guess Inc., 09-4373, U.S. District Court, Southern District of New York (Manhattan).  IPKat’s report is here.

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.