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Non-Traditional Trademarks: The Elusiveness of Branding a Trend
Earlier this year, fashion brand Steven Madden, Ltd. filed a declaratory judgment action against Jasmin Larian, LLC in a trademark dispute involving the latter's Cult Gaia “Ark” bag, a structured handbag made of interlocking rigid strips arranged in a half-moon shape. The dispute arose after Larian's counsel had sent a cease and desist correspondence to Madden requesting that it cease and desist from the marketing and sale of Madden's virtually identical “BShipper” bag. In its papers, Madden seeks a declaration that the “Ark” design is generic and not protectable because it “slavishly copies the traditional Japanese bamboo picnic bag design … from the 1940s.”
Last year, Forever 21, Inc. also filed a declaratory judgment action after its receipt of several cease and desist correspondences from Gucci America, Inc. In its letters, Gucci accused Forever 21 of selling products bearing Gucci's blue-red-blue and green-red-green stripes for which it owns several trademarks for different categories of goods.
What makes these cases unique is plaintiffs' proactive litigation strategy in seeking to invalidate a competitor's non-traditional trademarks. These affirmative measures usually assert an argument that no fashion brand should have a monopoly over a ubiquitous fashion design. It also reflects a push back on increasingly aggressive litigation tactics by fashion brands seeking to blur the lines between a non-protectable fashion trend and protectable, though non-traditional, trademarks.
Fashion Trends v. Trademarks: A Historical Perspective
Throughout history, fashion trends have reflected social attitudes toward class status, wealth, power and sexual identity. Chopines, for example, were an early version of the platform shoe that rose in popularity in 15th century Venice. They were originally used as a clog, or overshoe, to protect a wearer's shoes or dress from the muddy city streets. Some accounts indicate that they were initially worn by courtesans, with the height of the chopine intended to establish her highly visible public profile. Other accounts indicate that in later years, the chopine was worn by patrician Venitian women, with the height of the chopine commensurate with the level of nobility and grandeur of the wearer.
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