The Gap v. Gapnote

Posted on October 13, 2010

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On September 27, 2010, The Gap, Inc. and Gap Apparel, LLC filed a trademark infringement suit against Greg Murphy dba Gapnote Inc. and the Internet-based company he operates under the name Gapnote.com.  The website serves as a social media and networking webpage.

In the suit filed by the Gap, the company argues that Gapnote’s logo is “presented in a manner identical – or at a minimum, confusingly similar – to that used by The Gap”* and that the “company name constitutes a blatant violation of The Gap’s rights under applicable trademark and unfair competition laws.” The Gap also argues that Gapnote.com acted “with the intent to trade off the significant goodwill symbolized by and the strong public recognition of the Gap Mark.”

Gapnote.com is a social media Internet site that does not intend to trademark in the United States, and while it might seem at first that a clothing apparel company and a social network hub have little in common, The Gap sees the situation quite differently. In fact, The Gap argues that “both The Gap and the Website offer identical or substantially similar social media and networking capabilities on webpages and/or through networking applications.”

The Gap spends a significant amount of money each year advertising on the Internet and social media as well as involving its brand with sites such as Twitter and Groupon. The Gap has even developed applications for the iPhone and iPad. Also, considering that The Gap owns trademarks to subsidiary operations like Gap Body and Gap Kids, the company argues that it would be easy for a consumer to confuse Gapnote with yet another off-shoot of the primary corporation.

According to a Guardian article from October 6, Greg Murphy, chief executive of Gapnote said, “Gapnote has no intention to use its Gapnote trademark in connection with clothing or other goods. We believe in fairness, freedom and respect for all and not killing a start-up’s dreams.”  Part of his plea to The Gap involves a Facebook video he hopes will open “a dialogue” with the apparel juggernaut.  In the 30-second clip, Murphy directly addresses The Gap and asks for permission to “use the name gapnote,” but he also spends time promoting his own site. Murphy mentions that Gapnote.com will allow users to “chronicle their pasts, love their present, pre-record their future.” The video then ends with the tagline “don’t leave a gap, leave a note.”

In addition to seeking a denial of Gapnote’s trademark request, The Gap also seeks restitution in the form of Gapnote’s profits and “all other recoverable gains, profits, property and advantages derived by Defendant from its unlawful conduct” as well as punitive damages and reasonable attorney’s fees.

The Gap is trying to protect the status of its brand through this suit.  It may be difficult for The Gap to make a case when the trademarked word is a common one such as “gap.” However, The Gap has spent billions on advertising and promoting the mark, which will be one of the factors taken into consideration.

The Gap will also likely spend a lot to defend the mark because it is extremely valuable. Gapnote, on the other hand, is a start-up company. Litigation is extremely expensive and time-consuming and could potentially cripple a new company, so it is possible that this case will be settled.

The lesson to other start-up companies here is that a relatively small amount spent on an attorney prior to commencement of business operations may prove invaluable later by preventing a similar situation.

Elizabeth Ritter
Ritter Law Firm, LLC

*Unless otherwise attributed, all quotes come from The Gap’s complaint filed September 27, 2010 against Greg Murphy D/B/A Gapnote, Inc. and Gapnote.com  in the U.S. District Court for the Northern District of California.

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