Why does Louboutin get to own the color red, and what does this mean for you?

Non-Traditional Trademarks in the Fashion Industry

Trademark law was originally created to protect consumers against a “likelihood of confusion” in the marketplace. The law wanted to give people a way to ID who made the goods they were consuming, and who to hold accountable if the quality was lacking.

In 1927 Frank Isaac Schecter argued that trademark protection had evolved past just protecting consumers and holding manufacturers liable. Instead, modern trademarks had their own inherent “selling power.” Trademark owners, or brands, also needed to be protected under trademark law, because infringing goods could “dilute” the reputation and goodwill of their mark.

The theory of “trademark dilution” was a hit in the fashion world, as luxury brands stood to benefit from warding off infringers and counterfeits. This gradually led to the recognition of non-traditional or non-conventional trademark protection over recognizable elements of a brand or product that goes beyond the brand name or logo. This meant even more ways to distinguish their brand and go after “infringers.”

Over time, non-traditional trademarks have become a de facto way for apparel brands to protect unique design elements. Fashion designs have repeatedly been barred from copyright protection because apparel is seen as a “functional” item rather than a work of art. Thus, apparel brands have gotten creative with non-traditional trademarks to protect design elements they feel are unique and distinctive to them.

Note: distinctive is the keyword here. A core requirement of trademark registration is distinctiveness, or whether what is being protected can actually identify the source of the goods. Trademarks can either be inherently distinct, like a really unique brand name, or acquire distinctiveness over time (5+ years) through consistent use, marketing, and consumer association.

When it comes to non-traditional marks, a brand must be able to show acquired distinctiveness. They can show this through evidence that it has been consistently using that design element for at least 5 years, that the element has been a central part of its marketing and brand identity, and that consumers now associate that element with the brand.

What does this mean for younger fashion brands?

Owning the rights to your brand name and logo will always remain the most important part of establishing and growing your brand. If you’re just launching your brand or haven’t launched yet, this should be high on your priority list.

Protecting non-traditional elements of your products comes secondary, especially since it takes a minimum of 5 years to establish acquired distinctiveness. But! When you do get to the point where you are able to show that a certain design element is distinctive and unique to your brand, being able to legally own and protect that design element is an iconic branding move (i.e. all of the examples shown below). Even if you’re still in the beginning stages, it’s never too early to think of a design element that you want to consistently incorporate and eventually officially own as a part of your brand’s signature.

Just a few of the brands who have opted to trademark their unique design elements.