Fashion law and in particular copyright law can be exciting disciplines. Most of us look at the surface of things, at new collections and exciting products, but, if we stopped for a while to examine a garment or an accessory, we would realise that behind that well-known and super recognisable logo there are specific trademark laws and long processes to get it registered at the competent authorities. Yet, this key step considered as vital for any fashion house as logos and trademarks are the secrets to keep a brand desirable, may generate some confusions and disputes.
Let's take for example the case of Paris-based designer Marine Serre: the winner of the 2017 LVMH Prize for Young Fashion Designers, Serre started showing her collections in February 2018 in Paris and was soon acclaimed for her sustainable approach to fashion and for her garments made with recycled materials. Among her most popular designs there are the stretch-jersey tops and leggings covered with a pattern of crescent moons.
Coveted by fashionistas and favoured by celebrities, the crescent moon designs have become easily recognisable on social media and the designer has registered with the European Union Intellectual Property Office ("EUIPO") a logo with a crescent moon and the wording "MARINE SERRE" in stylized font and for a variety of categories including clothes, accessories (from leather goods to garments for pets), perfumes and cosmetics.
There are actually two applications for the trademark registration of this logo, one from 2018 that was approved, and another from March 2020 that consists in a variation of the previous logo and for categories such as spectacles, sunglasses, jewelry and stationery, that, at the time of writing this post, is still under examination.
Besides in June 2018, Serre applied with the EUIPO to register as a "Design" (and therefore not a "Trademark") a multiple crescent moon pattern that wasn't accompanied by her name. The application was accepted, but things went differently when she attempted to register another version of this pattern as a trademark in September 2019. The trademark was indeed provisionally rejected in October 2019 with a simple explanation - the pattern can't act as a trademark being decorative in nature.
In December 2019 Serre appealed remarking that, while being decorative, that particular pattern was also distinctive and therefore could have been used as a trademark.
Yet, while all her clothes contain the crescent moon mark, according to the EUIPO using it doesn't mean that the crescent moon is immediately linked to her. The office also highlighted that the multiple crescent pattern does not represent the commercial origin of the products on which it appears and does not make it distinguishable from the products of other companies.
Besides, while it is true that fans and fashionistas may see a top with the crescent moons and link it to Serre, the vast majority of people may not be able to do so (Serre's lawyers produced media report from France, England, Belgium, the Netherlands and Italy to support the "acquired distinctiveness" thesis, but the evidence wouldn't cover other European countries).
Besides, Serre has only used the pattern since 2016, which, according to the EUIPO, is a relatively short period of time that does not allow to consider the motif as distinctive. So this trademark application remains for the time being still "under examination".
There is maybe one piece of evidence that may go in favour of EUIPO's decision and against Serre: historically speaking the crescent moon symbol first appeared in the Hellenistic period (4th-1st centuries BCE) and in the Greek, Roman, Persian and Byzantine iconography, but in fashion it was employed by different designers including Valentina.
Valentina Nicholaevna Sanina Schlee (1899-1989), simply known as Valentina, was a Ukrainian émigrée fashion designer and theatrical costume designer who worked in the States between the late 1920s and the '50s. The wife of Russian financier George Schlee, Valentina became famous for her dramatic style and couture creations sold at her boutique on Madison Avenue in new York.
Valentina dressed many actresses, including Katharine Cornell, Greta Garbo, Gloria Swanson and Katharine Hepburn. She is remembered for her elegant designs and her statements and quotes about timeless fashion such as "simplicity survives the changes of fashion" and "women of chic are wearing now dresses they bought from me in 1936. Fit the century, forget the year." In a way her words were prophetic: in 2012 a gold taffeta shirt dress by Valentina from 1955 that featured a black crescent moon pattern was sold for $10,000 at an auction of objects and dresses that belonged to Greta Garbo in Los Angeles.
In this case the crescent moons are bigger and not as frequently repeated as in Serre's version, but more distanced, yet the motif is the same and even the combination of colours in Valentina's gown calls to mind the colours of Serre's most popular crescent moon design.
Will Serre eventually managed to get her crescent moon registered as a trademark in the same way as Gucci got its green, red and green stripes? Time will tell, but in the meantime Valentina's quote comes to mind: simplicity really survives the changes of fashion and that's maybe why the crescent moon pattern is now fashionable (but not yet trademarkable...) again.
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