Gap sues social networking site over trademark

Lawyers acting for Gap are seeking undisclosed damages from GapnoteA social networking site set up by a former London student is being sued by high street retailer Gap which claims the site's "Gapnote" name infringes its trademark.Gapnote, which is still yet to launch in beta mode though the domain name has been registered for two years, allows users to document their past, connect online with friends in the present, and create communication to be delivered in the future.But lawyers acting for Gap are seeking undisclosed damages from Gapnote, as well as the immediate dropping of the "Gap" mark in its name, saying that Gapnote is using its trademark "with the intent to deceive consumers and generate interest in its own social media and networking website".In July, Gap wrote to Gapnote demanding that it permanently cease to use the mark "Gap" and hand over its Gapnote.com domain name to the fashion retailer. Lawyers acting on behalf of Gap claim that "the similarity between the two marks is substantial since the term 'Gapnote' incorporates the 'Gap' mark in its entirety in an almost identical font. Even if the font were changed, the marks are nonetheless nearly identical, as your client's mark is GAP plus the descriptive term 'note,' which does not serve to meaningfully distinguish the two marks."Gap also claims that "the proximity of the goods and services marketed under the two marks is extremely close, and their marketing channels are identical."However, Gapnote disagrees that the two companies operate similarly, telling the Guardian: "We have no intentions in becoming an apparel store now or any time in the future."Greg Murphy, chief executive of Gapnote, said: "We're not going to go into beta until this Gap case is resolved. We can't afford to go to court with them, but I don't want to let them get away with this."We respect Gap's trademarks, but disagree with Gap's contention that it has the exclusive right to use the word 'Gap' ? regardless of how it is used or combined ? on the internet with any conceivable business. Our name Gapnote forms a huge, enormous part of our identity, our purpose and who we were born to be. Gap has demanded that we give up our name, discontinue, disable and transfer Gapnote.com over to them."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.We will do all we can to defend our right to use the name Gapnote."Gap had not responded to requests for comment at time of publication.San Francisco-based legal advocacy group, the Electronic Frontier Foundation, has warned that early-stage companies such as Gapnote could unwittingly end up on the wrong side of copyright action from multinational companies if precautionary measures, such as consulting with lawyers specialising in intellectual property rights, aren't taken early on.Clare Robinson, a partner at UK-based legal firm Osborne Clarke, said: "This is a US case on trademark infringement. There are often cases of this type between companies in separate industries but in the UK success would largely depend upon establishing that there is a likelihood of confusion."Due to recent European Court decisions, this type of case would not be guaranteed to succeed for Gap in Europe. However, litigation is expensive and is therefore particularly risky for young companies like Gapnote. Startups need great legal advice from the outset to avoid getting themselves into this kind of situation. A small sum spent at the outset choosing the right name and protecting it can save a fortune later on."InternetSocial networkingSocial mediaDigital mediaJosh Hallidayguardian.co.uk © Guardian News & Media Limited 2010 | Use of this content is subject to our Terms & Conditions | More Feeds

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