Importance of brand for fashion retailers

Trademark laws are designed to protect the intellectual property rights of individuals and businesses, regardless of their size or influence in the marketplace. This means that even a small business can take legal action to defend their trademark rights against bigger brands if they believe that their trademark has been infringed upon.

Trademark protection is crucial for companies to safeguard their brand identity, reputation, and prevent consumer confusion. Well-known brands often take proactive measures to monitor and enforce their trademarks and prevent others from using similar marks that could cause confusion among consumers. Contrary to its reputation when it comes to trademark enforcement, Adidas recently withdrew its trademark opposition against Black Lives Matter Global Network Foundation.

With its long-awaited decision in the Hermès International v. Mason Rothschild case, the jury found that an artist’s nonfungible tokens of Hermès’ iconic Birkin bags violated the luxury fashion house’s trademark rights. This case raises interesting questions about the scope of trademark protection and trademark law in the current digital age and in light of emerging technologies.

Adidas is currently pursuing legal action against an American luxury fashion designer Thom Browne, in particular against the designer's use of four-stripe designs on his clothing. "Three-Stripes" is undoubtedly one of the most prominent designs associated with Adidas by consumers, but does it also enjoy trademark protection?

Within fashion, quotation marks are immediately associated with Virgil Abloh and his Off-White brand, which uses them as a graphic-decorative element, creating clothing items with a sense of irony towards the rules of fashion itself. The use of quotation marks, however, is not the exclusive property of the brand on a commercial level and will never be, as it “merely describes a feature and purpose of goods,” according to the USPTO. Can Virgil challenge this claim and obtain trademark ownership of universally known symbols such as quotation marks?

In recent years it has been increasingly difficult even for well-known fashion houses to register their trademarks as public consumers are exposed to an abundance of design forms. Even Dior’s iconic saddle bag is not distinctive enough to diverge from the norm of rejected marks, as the recent EUIPO ruling proves.

On July 12, 2022, the Japan Patent Office (JPO) dismissed an opposition claimed by Italian fashion house Gucci against trademark registration for the term “CUGGL” with a hand-painted line in pink by finding less likelihood of confusion with famous fashion brand “GUCCI”. This case highlights the ongoing issues of insufficient measures against counterfeiting within Japanese IP Laws. But the situation is likely to change soon.

With the recent rise of luxury resale, we can also see increased counterfeit products, with fashion brands being a favourite target. As the trend is likely to continue in the upcoming years, the fashion industry faces an increased risk of facing even more losses due to fake luxury merchandise. How can fashion brands protect themselves and ensure cosumers are getting authentic product?

MSCHF released their new creative project, “The Satan Shoes”, in collaboration with the rapper Lil Nas X, following the release of a devil-themed music video for his song “Montero (Call Me by Your Name)”. The shoes were a customized version of Air Max 97, featuring human blood and Nike’s logo. Nike did not appreciate artistic expression at the expense of its brand reputation.

Fashion is one of the biggest industries in the world. Global market value of the clothing industry was set to $1.7 trillion dollars in 2021 and expected to enjoy a 6.1% growth to $1.95 billion dollars in 2022-2023 according to two different research reports by Euromonitor and McKinsey [1]. This article highlights why trademark registration is of a crucial importance for fashion retailers.