Who’s Getting Fleeced?

On November 22, 2022, Patagonia sued The Gap for trademark and trade dress infringement by selling a fleece pullover that Patagonia alleges infringe the design of its Snap-T design:

According to the Complaint, the design of the Snap-T pullover is constantly evolving. The one feature that does seem to be constant is a contrasting asymmetric pocket:

Given the changes in the design over time, and fact there are multiple versions of the current Snap-T design, precisely what is Pategonia’s trade dress is difficult to determine.

Some designs have a contrasting placket, some don’t; some designs have an asymmetric pocket flap, others don’t, and some don’t have pockets at all. There are even more variations when other lines of fleece pullovers are considered. Can Patagonia show that it has a protectable trade dress, and if so, what are its elements?

In its Complaint, Patagonia cited an on-line review that pointed out that Gap’s fleece was an “Obvious Patagonia ripoff,” but obvious suggests there is not a likelihood of confusion, and apparently Gap’s lablel did what it was supposed to do: identify the source of Gap’s fleece as a Gap product. However Gap did itself no favors with its label design. Sure, the Gap name is readily apparent, but the mountain background is almost provocative.

Plackets, pocket flaps, and chest labels are common features of fleece pullovers. Is Patagonia’s combination of these features unique enough that others can’t make a similar fleece pull over?