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

When a designer with an international, cult following of fashion insiders shifts his headquarters to Brussels, could it mean that the Belgian city better known for its frites, waffles and EU bureaucracy will be the next fashion hotspot? I sat down with Brussels’ new transplant, David Szeto, in his huge 2 story space (see above) to learn the reasons behind his move from Paris, Szeto’s long-standing home base.

Antwerp, of course, is the reigning champion of Belgian fashion, having produced the avant-garde group of designers known as the Antwerp Six, all of whom graduated from Antwerp’s famous Royal Academy of Fine Arts. More recently, the school has gained recognition for nurturing designers like Bruno Pieters, Kris van Assche and Haider Ackerman. But, if David’s recent move is anything to go by, then maybe we’ll be talking about the Brussels Six as well someday.

Fashion talent watchers have always kept a close eye on London, which in recent years has produced the likes of Christopher Kane, Marios Schwab and Giles Deacon, all of whom come from Central St Martins, the prestigious fashion school. London is a city with unmatched energy and cultural diversity, but upon graduation, many London-based designers find that London is also a very tough place from which to run a fashion business.

With limited access to local manufacturing, London-based designers find themselves rushing back and forth to the Continent in order to manage production. They also complain of  high costs – space is expensive and difficult to find. And, to top it all off, even if they show in London, designers must still take their collections to Paris for sales because many stockists do not include London on their buying trips.

Paris also poses its own challenges as a base for for emerging talent. While it is arguably the world’s most important fashion capital (that’s what The Economist thinks anyway),  it can be a nightmare for entrepreneurs to navigate. It’s hard to hire (and fire) employees and getting around the labyrinthine French bureaucracy is daunting, to say the least. Getting a slot on the official Paris schedule is almost impossible, what with all of the big brand heavyweights who are not going anywhere soon.

Brussels, on the other hand, seems to have the raw materials to be a new haven for emerging talent.  Rents in Brussels are much lower than those in Paris or London. And, Brussels is within easy reach of top-quality manufacturing in France and less than 2 easy hours away by train from fashion centres like London and Paris.

But, it’s not just practical reasons that drew David to Brussels. “Something about Brussels reminds me of how I felt when I arrived in London many years ago,” he told me.

Could this be the start of a bona fide fashion movement?

Autumn/Winter 07/08 image courtesy of David Szeto.