From Clothing the Gap to Clothing the Gaps because of “Gap”
23 April 2021
After being embroiled in a two-year trademark infringement case with American apparel brand Gap, a small Melbourne-based indigenous-run business is now rebranding.
By the end of July 2021, the streetwear label will be named Clothing the Gaps – a one-letter addition from its original name, Clothing the Gap.
The move to rebrand came following an opposition decision made by a delegate of the Trade Marks Registrar over the use of the word “Gap” in the brand name. Gap Inc. learned of the application for trademark registration of Clothing the Gap and sent a cease and desist letter to its founder and managing director Laura Thompson in 2019.
It was just a play of the words “closing the gap,” according to Thompson, as stated in an article in abc.net.au.
Finally, in November 2020, a judge ruled in favour of Gap Inc. The decision to rebrand was as a consequence of an agreement between the parties following the decision.
“Financially, any rebranding exercise comes at a business cost, for Thompson operating a social enterprise that impact is considerably exacerbated. Irrespective of any assessment of the perceived merits of the case, Thompson’s company has chosen to respond in a pragmatic way. This is an opposition decision at the Registry level which is appealable before the Federal Court. Thompson has already had the experience of the uncertainty of the outcome opposition proceedings. By focusing on a practical solution rather than contesting the decision, she has, in her own words, chosen to focus her business energies on the ‘purpose’ of her business rather than ongoing legal battles,” said Marion Heathcote, a principal at Davies Collison Cave in Sydney.
For now, the court is allowing Thompson’s business, which employs around 15 aboriginal people, to be called Clothing the Gap until July 30, 2021.
Thompson explained in the article that Clothing the Gap refers to the pursuit of closing the gap to make life better for Australia’s aboriginal sector. But, there are indeed more gaps to fill and close to achieve this end. Hence, the new brand name, Clothing the Gaps, does sound apt for this advocacy.
“Most Australians are, or should be, familiar with Closing the Gap being a parliamentary response and governmental framework aimed at achieving equality n health and life expectancy for Aboriginal and Torres Strait Islander people within a generation,” said Heathcote. “The play on this in Clothing the Gap would have resonated with many as will Clothing the Gaps, which expands upon that concept and recognizes that there are multiple ‘gaps’ that need to be filled in this journey. Considerations as to deceptive similarity and questions as to likelihood of confusion can be very nuanced as can assessments of anticipated consumer responses. The parties have between themselves come to an agreement and believe the solution addresses perceived concerns.”
“Grappling with the intricacies of the IP system can be challenging for any business and it is always difficult for a business who has engaged in the process and buoyed by the acceptance of their trade mark application to lose at opposition,” she added. “The tragedy of this case is the social enterprise nature and purpose of the applicant’s business makes the consequence seemingly more devastating.”
Clothing the Gap is selling off all its products carrying the word “Gap” as it transitions to a new brand.
Espie Angelica A. de Leon
