Patterns Protection
Two iconic fashion houses faced the modern realities of protecting patterns in 2022, with one failing to apply and another canceling its mark that year. Prada filed with the European Union Intellectual Property Office (EUIPO) for protection of a repeating triangle pattern. Prada's triangle logo is a registered trademark; however, the EUIPO rejected the new submission. The EUIPO reasoned that the black-and-white triangle pattern lacked inherent distinctiveness and was too commonplace to function as a source identifier.
Similarly, Louis Vuitton faced a similar challenge when its checkerboard pattern trademark was canceled in October 2022. The EUIPO ruled that Louis Vuitton had not established acquired distinctiveness across all EU member states at issue, despite submitting evidence of consumer recognition in some. These instances show the nuances of obtaining pattern protection and the potential importance of survey evidence.
Distinctiveness in the EU and the US
To register its trademark before the EUIPO, Prada relied on evidence of inherent distinctiveness and did not submit additional evidence to prove secondary meaning. The EUIPO rejected its filing and concluded that the geometric patterns alone do not signal brand origin.
Louis Vuitton provided survey evidence of acquired distinctiveness. However, the EU General Court concluded that the evidence was too fragmented across EU member states to be persuasive. To succeed, EU applicants must show recognition across the entire relevant territory, not just select regions.
A similar principle applies in the US, even though the territorial framework differs. Courts and the USPTO require survey evidence that speaks directly to the population at issue. If the mark applies to a regional chain, for example, a survey must measure awareness among consumers in that region. Courts consistently reject surveys that fail to capture the correct "universe" of consumers.
The Role of Consumer Surveys in Secondary Meaning
When a design, color, or motif comes to signal a brand's source in consumers' minds, it acquires secondary meaning (also called acquired distinctiveness). Demonstrating secondary meaning can be a deciding factor in trademark disputes, and consumer surveys are among the most persuasive ways to establish it.
- Secondary meaning surveys measure whether consumers associate a design with a single source.
- Territory-specific surveys ensure evidence reflects the relevant consumer base, whether across EU member states or US states.
- Litigation and registration support: Surveys can be introduced both when applying for a trademark and in trademark disputes, providing courts and regulators with reliable data on consumer perceptions.
Historically and globally recognized fashion houses risk rejection or cancellation of their pattern marks without proper protection, which may require consumer research.
Brand Identity Protection in a Global Market
Reputation is insufficient to secure trademark protection. Fashion brand owners must provide evidence that consumers see a pattern, design, or motif as more than decoration, but rather, as a brand identifier.
Consumer surveys "tailored" to the right audience make that evidence possible. These surveys provide strategic advantages in litigation and brand protection. If your organization faces challenges related to growing distinctiveness or secondary meaning, IMS Legal Strategies can design and deliver consumer perception surveys that hold up in court or before other trademark authorities.
Reed, John L. "Lanham Act and Deceptive Trade Practice Claims Arising Under State Professional Licensure Laws." (1997). https://core.ac.uk/download/144227127.pdf.
