Does Gap’s Response to the Power of Social Networks Mean a Forfeiture of Any Trademark Rights to their Temporary New Logo?

Last week, Gap replaced their iconic ‘blue box’ logo with a new trademark.  The response from consumers was less than kind.  One user wrote on Gap’s facebook page, “This is the worst idea Gap has ever had. I will be sad to see this change take place. If this logo is brought into the clothing [store] I will no long[er] be shopping with the Gap. Really a bummer because 90% of my clothing has been purchased there in the last 15+ years.”  The backlash from consumers even included several Twitter accounts created to show consumers’ disdain for the logo.  Through the power of social networking, Gap got the message loud and clear that its consumers, the bread and butter of any business, hated the new  logo.  They didn’t merely dislike it, they hated it.  Some consumers described it as a piece of Clip Art from an outdated version of Microsoft Word.  Ouch!

Gap quickly responded, pulling the new logo.  Gap’s facebook page stated, “Ok. We’ve heard loud and clear that you don’t like the new logo. We’ve learned a lot from the feedback. We only want what’s best for the brand and our customers. So instead of crowd sourcing, we’re bringing back the Blue Box tonight.”  Further, in a press release entitled “GAP LISTENS TO CUSTOMERS AND WILL KEEP CLASSIC BLUE BOX LOGO,” the company stated, “Ultimately, we’ve learned just how much energy there is around our brand. All roads were leading us back to the blue box, so we’ve made the decision not to use the new logo on gap.com any further. . . we will bring [the blue box] back across all channels.”

GAP LISTENS TO CUSTOMERS AND WILL KEEP CLASSIC BLUE BOX LOGO,” the company stated

The entire saga raises an interesting question.  Should Gap’s public announcement not to use the new logo forfeit any trademark rights they might have to it?  Under the Lanham Act, a mark shall be deemed to be "abandoned" when:

(1)  [i]ts use has been discontinued with intent not to resume such use. Intent not to resume may be inferred from circumstances. Nonuse for three consecutive years shall be prima facie evidence of abandonment. "Use" of a mark means the bona fide use of that mark made in the ordinary course of trade, and not made merely to reserve a right in a mark..

Gap’s intent not to resume use of the mark can be inferred from the circumstances.  Consumers hated the new logo and threatened to stop shopping at the retailer if it remained, and Gap responded accordingly to appease them.  But would this be enough evidence for a court to deem that Gap abandoned the mark completely?  It’s probably a safe bet to say that Gap would take issue with another brand picking up the logo and inserting their name, capitalizing on the publicity of Gap’s attempted use of the new logo.  Should Gap be able to assert that they plan not to use the logo again, and then also claim that they didn’t legally abandon it and keep another brand from using the mark?  It’s an interesting question, and the power of social networking is making it a more relevant issue.  Should trademark law start adjusting to the rising power of social networking?  Brands are now more visible, than ever, and those without a presence on these networks are more invisible than ever.  As consumers become more instrumental in brand creation and demise, Congress may need to adjust the Lanham Act to account for assertions made by companies on Facebook, Twitter and other social media sites.