Hands Off “My” Colors, Patterns, and Shapes! How Non-Traditional Trademarks Promote Standardization and May Negatively Impact Creativity and Innovation

Abstract

This chapter criticizes the protection of non-traditional trademarks (NTTMs) by focusing on three specific examples from the fashion industry: Louboutin, Gucci, and Bottega Veneta. In particular, besides repeating that granting exclusive rights to NTTMs equates in foreclosing competitors and third parties from using any identical and similar product design and products feature, this chapter highlights an additional problem related to the protection of NTTMs. Notably, that, by recognizing and protecting as marks elements that are product design and aesthetic product features, protecting these marks supports a system of intellectual property protection that promotes standardization, rather than creativity and innovation, in product development. In turn, in the view of the author, protecting NTTMs has a twofold negative impact. First, it induces businesses to standardize the aesthetic features of their products and repeatedly use them on their products to acquire the level of necessary market recognition (distinctiveness) to be protected as trademarks. Second, protecting NTTMs may lead to less investment not only in product and design innovation but also in product quality. Notably, securing and enforcing NTTMs allows businesses to capitalize on, and extract value from, the attractive power of the marks, which can be a short-term more viable means to attract consumers toward purchasing their products rather than investment in long-term product quality. This situation could be avoided, in the view of the author, by effectively curtailing the protection of these marks, which remain product designs and, albeit being appealing, valuable, and frequently distinctive, are not meant to be protected for a virtually unlimited period of time as trademarks.