Everything old is new again? Protecting traditional fashion designs as non-traditional marks
Robert J. Kenney, for World Trademark Review.
A pending US district court case on a fashion company’s efforts to protect a handbag design as a non-traditional trademark under US law – even though variations of the design have long been in the public domain – should provide much-needed clarity on this area.
Given the cyclical nature of fashion trends, the reappearance of yesterday’s fashion as today’s new “it” design may be inevitable– think (unfortunately) bell bottoms. When variations of a particular product design have been consistently part of the public domain for a long time or for recurring periods, can a fashion company protect that design as a non-traditional trademark under US law? That question, and a traditional Japanese design for a bamboo picnic bag, are at the heart of Steven Madden Ltd. v. Jasmin Larian LLC (Civil Action 18-CV-2043; 6 March 2018, currently pending in the US District Court for the Southern District of New York).
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This article first appeared in World Trademark Review issue 74, published by Globe Business Media Group – IP Division. To view the issue in full, please go to www.WorldTrademarkReview.com.