An Infringement Target: Trademark Infringement Suit Hits Bullseye for Private Label Brand

Arent Fox
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Arent Fox

An Atlanta-based entrepreneur contends that retailer Target intentionally infringed on her trademark GARNISH AND GATHER for a meal-delivery service through its adoption and use of the mark GOOD & GATHER on an in-store food brand.

Battle of Goodwill

Garnish & Gather LLC is a meal delivery kit service offered to customers in Atlanta, Georgia, since 2013. In connection with its delivery service and its locally sourced produce, G&G registered the mark GARNISH AND GATHER in 2014.

In 2018, Target Brands, Inc. applied to register the marks GOOD & GATHER for a variety of food and beverage products. Shortly thereafter, Target began using the GOOD & GATHER trademark for its in-store food brand, which includes the sale of over 600 food products, including prepared foods. Target’s applications to register its GOOD & GATHER trademark were approved for registration and survived the publication period without an objection to its proposed registrations from third parties.

Prior to the GOOD & GATHER brand launch, G&G sent a cease-and-desist letter to Target contending that the mark GOOD & GATHER infringed on its rights in the GARNISH AND GATHER word and design trademarks. Target responded to the letter denying the allegations of infringement and proceeded to launch its now profitable store brand. Target attempted to alleviate G&G’s concerns about the launch by allegedly offering to help with search engine optimization, which G&G rejected.

G&G subsequently filed a lawsuit in the Southern District of New York, alleging trademark infringement, unfair competition, trademark dilution, and fraud. Target has filed a motion to transfer the case to the District of Minnesota, where Target is headquartered.

G&G primarily contends that the marks GOOD & GATHER and GARNISH AND GATHER look and sound similar, and are similar in impression because of the “G&G” alliteration. G&G also alleges that the products and services are similar and competitive since many Target stores offer home delivery of store-brand products. The logos that each company uses are also alleged to be similar:

Good and Gather

Garnish & Gather

Gaining Attention

On December 3, 2019, G&G filed a motion for a preliminary injunction, which is pending before the court. Target filed its answer to the complaint maintaining its position of non-infringement. The suit has gained significant media attention positioned as a classic “David v. Goliath” contest. Indeed, it is reported that Target’s GOOD & GATHER brand could be a multibillion-dollar business by the end of 2020. The motions are currently pending.

Bottom Line

A successfully cultivated brand can yield a high return on the investment made in development. Trademark clearance searching should be a critical part of any brand launch. Professional trademark searches help early on in the product development process to identify potential risks or liabilities that may come from adopting a new brand name. A full trademark search can inform businesses of risks that it may face and help brands determine whether a new brand name is worth the investment of time, money, and resources.

As a trademark owner, trademark monitoring is an important safeguard against reputational threats from competitors. There are many cost-effective administrative avenues that can be pursued in lieu of or in conjunction with federal court litigation that brand owners can take advantage of if they diligently monitor and police the market for potential infringers. Such early-stage intervention may deter potential infringers from making further investments in a particular brand.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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