Off-white Wins Trade Mark Protection
| DOI | 10.1093/jiplp/jpaa168 |
| Date | 28 November 2020 |
| Pages | 940-942 |
| Year | 2020 |
| Published By | Oxford University Press |
Case T-133/19
What is a good trade mark from a legal standpoint is not necessarily a good trade mark from a marketing perspective and, conversely, a good trade mark for a marketer is not necessarily a strong trade mark for a lawyer. A typical illustration of this problem is when marketers choose, for obvious marketing reasons, a sign which is so evocative of the products and services that it is considered devoid of distinctiveness per se for legal reasons, which as a consequence constitute a serious obstacle for its protection. Regularly, marketing reasons prevail over legal ones which entail the filing of weak trade marks, at least for a lawyer. To give just an example: the company vente-privee.com (which is now called Veepee) created by the famous French entrepreneur Jacques-Antoine Granjon filed several trade marks ‘vente-privée.com’ for services related to private sales on the Web in France, which resulted in several legal disputes on their validity. What is even more astonishing, still for a lawyer, is that sometimes signs, which are considered to be devoid of distinctiveness per se (such as ‘vente-privée.com’), become quite immediately distinctive on the market, thus demonstrating that those signs must have had at least a little bit of distinctiveness on the market to get the attention of consumers! Is it to say that lawyers are disconnected from market reality? The present case illustrates this situation and how the pragmatism of the EU General Court could provide some relief to marketers and, for once, lawyers too.
In 2013, Virgil Abloh, a black American designer who recently became Louis Vuitton’s artistic director for men’s wear collection, created OFF-WHITE LLC, a Milan-based luxury sportswear fashion label. Mr Abloh chose the name ‘off-white’ for his brand because this shade of colour—a white with a grey tinge—perfectly describes to him ‘the grey area between black and white’ in the fashion world. OFF-WHITE’s popularity has grown rapidly all around the world thanks to its creativity and to collaborations with various well-known brands such as Nike, Ikea, Jimmy Choo and Evian. Celebrities, including Rihanna, Beyoncé, Drake and Kanye West, to cite just a few, have been seduced...
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