Copycat Culture | The Shape of Things


Hermès Kelly Bag, courtesy of Hermès

BRUSSELS, Belgium — Sometimes, a mere glimpse of a product’s silhouette is enough to tell which designer or fashion house created it: the Chanel No 5 perfume bottle, the toe of a Berluti shoe, the unique shape of the Fendi baguette. Today, there is renewed interest in these kinds of classic products as shape and design have made a return in making a product desirable, especially now when consumers don’t want their products to scream with logos and bling.

As they look for unbranded products that are recognisable for their design, this also raises the question of whether there is adequate legal protection for these more subtle indications of provenance. This will almost certainly reignite a debate for strong design right protection, but it might also mean that the shape of a product is worthy of trademark protection in and of itself.

The fashion industry is currently fighting two battles on the intellectual property front. The first is against counterfeiters exploiting trademarks and logos. The second, more complicated battle is against those not-so-imaginative designers from within the industry who are simply aping the designs of their peers. This second fight is the one that is most harmful to creativity, investment and reputation. The main weapon against knockoffs is design right protection, but this is not an option if the design isn’t new. So, timeless products without obvious trademarks but which are instantly recognisable — think the classic Hermès Kelly bag — are in a sort-of legal limbo.

In the EU, it is in principle possible to protect a (three-dimensional) shape as a trademark. In practice, however, it has proven extremely difficult to convince courts that a shape has a sufficiently “distinctive character” to be registered. For many years, European courts have been of the opinion that consumers are not in the habit of making assumptions about the origin of products based on their shape. They argue that consumers need a sign or word element to make that connection.

Last week, an EU court restated this long-standing position in a case concerning the shape of the Bounty chocolate bar. The court’s view is basically that the shape of a product must be more than a variant of a common shape of the type of product in question. Only then can it fulfill the function of a trademark indicating origin. Assessing whether that is the case should be done from the point of view of “the relevant public”, described as the “average consumers of the products or services in question, who are reasonably well informed and reasonably observant and circumspect.”

Still, a closer look at this general reasoning makes one wonder if we haven’t actually arrived at a point where at least some consumer groups make the connection between a shape and a product’s origin. While the shape of the Bounty bar might not be sufficiently distinctive for a trademark, the case of luxury products is fundamentally different. These are sophisticated products whose design is born of an intellectual process, tells a message and (if all goes well) transcends generations. What’s more, the very essence of luxury products arguably creates a consumer group that is well above average when it comes to being informed, observant and circumspect about details, other brands and look-alikes.

If luxury consumers are willing to pay for quality in design and shape, shouldn’t it be possible to protect the required and underlying investment and creativity?

Hanne Melin is a competition and IP lawyer based in Brussels

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  1. Speaking of shapes… but isn’t the Kelly supposed to have only one handle coming from the top and the Birkin has two handles which latch on from the sides?

    Dahlia from Montreal, QC, Canada
  2. @Dahlia, You’re absolutely right. We have made the change.

    Imran Amed, Editor from London, London, United Kingdom
  3. Interesting post. Just as you said, the distinction between what should be protected is very unclear. I used to be very much in favor of strong copyright protection laws until I watched a Canadian Documentary called “RIP: a remixers manifesto”. They explore the notion of copyright laws actually limiting future creativity, as well as the reality that many of today’s iconic designs are also inspired by, or have borrowed from those before them. Now I’m not so clear. Worth checking out:

    Sonia from Toronto, ON, Canada
  4. Great article. I feel very strongly about counterfeiters myself and feel that it every designer’s right to have their designs, brands, etc. copyrighted. I think you bring up a very interesting point, one that I never thought about before, about the legal protection of a design of a particular luxury good. I think it IS important to have protection of such items that lend themselves to a particular consumer group.

    cheers! Please stop by my blog sometime!

    DC Fashion Gal

  5. Really interesting debate. The issue with copyright and other IP protection is always the same however – balancing the need to protect the design, mark or in this case the shape – against the public interest in not giving individuals and other entities general monopoly over such things like shapes.

    I think though ,if it’s distinctive enough it should be protected. It just needs to be careful as not to be so strong or general a protection that it adversely affects the freedom of future designers to be creative in their designs!


    May from Box Hill, Victoria, Australia
  6. great article, it makes some very interesting points. how about jewelry? can distinctive designs -like Bulgari or Cartier- be copyrighted and if yes what is the extent of the copyright protection (ie how many modifications are allowed for the design to be considered “original”)? i really believe there should be more attention on regulation in this field, even though it’s hard to find a balance between protection and creativity constraints

    LauraG. from United States
  7. Great point lauraG. A equilibrium must be struck between the copyright protection laws and creativity constraints. This issue comes in shades of grey, not black and white.

    kikelola from Nigeria
  8. Very good point. The perfect example would be Chanel’s 2.55 (although it does have a logo on it). Who would want to buy it when the average person on the street is wearing one. The ‘matelassé’ and ‘chaines’ then become associated with vulgarity in the traditional meaning of the word.

    But we have to point out that this raises a debate about the devenir of highstreet retailers such as Zara and H&M who literally copy famous designers and popularize the models through democratic pricing. By definition, doesn’t ‘fashion’ mean: ‘what everyone does’?
    Therefor, we could ask ourselves whether, if we kept the exclusivity of a model to unique benefit of use to one fashion house-designer, firms like Zara would not be able to copy, the model stays relatively unacessible and so the model would never become fashionable?

    This also raises the question on who influences who? The luxury firms designers influence highstreet retailing designers or luxury firms designers are influences by the ‘high street’ trends?
    I believe it is a circle, influencing each other. Bur I have to say, I would argue in favour of patenting.

    Raphaëlle from Bierbeek, 02, Belgium