the wake up call

here it is: https://www.facebook.com/businessoffashion/videos/10153519968607428/ 

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 Here is a short article I wrote for the Queen Mary Journal of Intellectual Property blog as Associate Editor. Do not hesitate to let me know your opinion on it and if you would like me to keep posting my work on this blog. Enjoy :)

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Ever since she was appointed Creative Director in 2008, designer Phoebe Philo has managed to turn the historic maison of Céline into one of the world’s uncontested leaders in the leather luxury goods market. Thanks to her understated aesthetics and fresh approach to design the French fashion house, which has been owned by the LVMH Group since 1996, has experienced an unprecedented success both from an economic and critical point of view, as consumers as well as fashion critics have saluted Philo’s creations with great enthusiasm.

The main reason of these achievements lies in the brand’s handbags production: not only Céline purses continue to be considered as cult items season after season but also – and more impressively – Philo is the pioneer creator of what can surely be regarded as one of the most noteworthy and distinctive bag shapes of the past decade, namely the ‘winged’ shape.

With success predictably comes imitation. Therefore, it is with no surprise that anyone who is remotely familiar with the fashion industry will be able to spot dangerously similar bags in catalogues and advertising campaigns of a variety of different brands including Valentino and Zara, Forever 21 and Michael Kors.

On the other hand, what could surprise the public at large is Philo’s perspective on the abovementioned phenomenon. As she has famously stated in an interview with Hamish Bowles for the March 2013 issue of Vogue US, the designer is ‘nothing but flattered’ by imitations and knock-offs. As Coco Chanel before her, she allegedly considers the lack of copies to be more troublesome than the copies per se, as that would imply her inability to identify future trends and subsequently a lack of recognition within the fashion community.

However, actions speak louder than words. Despite the creative’s claims, it is indeed possible to notice how both Céline and LVMH have been undertaking a series of practical and legal measures whose final aim is to control and ultimately reduce the imitation game.

Firstly, despite the growing importance of e-commerce practices within the fashion business[1], Céline does not retail online nor has an official social media presence on any platform.

If focusing on in-store sales can clearly be beneficial in the context of a branding strategy designed to enhance the brand’s aura of luxury and exclusivity, the same expedient can also be valuable in terms of lowering the chances of being used as a source of imitation, as well as useful when it comes to separate the original creations from the knock-offs which circulate on the internet.

Secondly, LVMH has been taking advantage of the distinctiveness of Philo’s handbags in order to obtain legal protection.

In 2013, Céline was granted two design patents in the US, respectively for the Diamond Clutch (part of the house’s Autumn/Winter 2013 collection) and the Case Bag (highlight of the Spring/Summer 2013 accessories line).

Moreover, two of the company’s most coveted handbags have been awarded trademark protection, once again under US law.

In May 2015 the Trapeze bag’s configuration, consisting in a ‘rectangular handbag with exaggerated, extendible pleated sides with a single rolled handle attached to a flap that covers ¾ of the front of the bag and which attaches to the bag by a rectangular metallic closure located at the bottom center of the flap […]’[2] has been successfully granted registration. More recently – January 5th2016 – the already iconic Luggage bag has been conferred protection which extends to the ‘three-dimensional configuration of a rectangular bag with extendable accordion-style sides, extruding parallel S wave designs on bag front, and rear, shield-shaped handle bracers designs on front and rear of bag. The broken lines depicting the handles, body, and central rectangular zipper outlined on the front face of the bag indicate placement of the mark on the goods and are not part of the mark. As placed on the front of the bag, the zipper represents the mouth of a face design in which the handle supports appear to be the eyes and the S wave designs represent the facial outline’[3].

In both cases, Céline filed for the registration of a shape mark. When it comes to trade dress protection, US trademark law states that product design cannot be considered as inherently distinctive[4]. Accordingly, in order for it to be registered, the applicant has to prove it has acquired secondary meaning by showing evidence of the fact that consumers connect the design in question to the specific brand that produced it and that the principal function of a trademark – being an indicator of origin – has therefore been safeguarded.

If the Christian Louboutin saga has taught us anything, it is that secondary meaning can be extremely hard to prove in practice, even in the presence of compelling evidence: when non-traditional marks are involved, showing that consumers see them as indicators of origin is a difficult undertaking, especially in the fashion industry. Nevertheless, in this case both applications have been successful, showing that investing in branding and advertising can be an overall winning strategy for companies whose business model consists in reintroducing their most successful designs every season and that may thus benefit greatly from a long-term legal protection of their assets.