Imagine a well-branded luxury garment with a recognisable logo and gorgeous features such as custom stitching, embellishments on buttons, hardware such as zips or bag closure mechanisms, packaged in a beautiful, scented bag. Savvy customers appreciate all these hallmarks of high-end fashion products.

But today’s trend of quiet luxury does away completely with prominent names and logos and instead relies on subtle but symbolic details to convey the brand. It’s a new aesthetic of understated affluence and elegance for refined and educated tastes.

Of course, it is harder to identify an expensive piece without conspicuous clues. Quiet luxury’s aura of mystery is precisely what creates a sense of educated exclusivity in the elite social circles of people who can recognise (and afford) premium possessions. The focus is less on appended logos and more on the product’s appearance or materials, tying in with trends favouring high-end, sustainable, durable materials, craftmanship and quality.

Beautiful as these exclusive pieces are, they raise challenges for luxury legal departments to protect brand identity. Are the symbols of quiet luxury legally protectable, like a more traditional name or logo mark is? 

To be registerable as a trademark, design features must depart sufficiently from the norms of the industry. If source identifiers are not sufficiently distinctive, a trademark application may be refused. Article 7(1)(e) of the EUTMR expressly excludes from registration signs that consist exclusively of the shape or another characteristic of a product which:

• results from the nature of the goods;
• is necessary to obtain a technical result; or, 
• which gives a substantial value to the goods.

Registering a subtle clue that exists in a part of a product, or a design feature, may be more challenging than a prominent brand identifier such as a logo. This is why it is important to look closely for distinctive, protectable elements in the products, especially features that repeat across a range of products. Of course, these identifiers cannot be so subtle that they are incapable of registration. These new designs are less likely to be able to claim acquired distinctiveness since their subtle clues must be shown to function as an indication of origin. Collating the necessary weight of evidence requires a sustained and well-curated effort to demonstrate that a subtle cue actually functions in this way. One potential option for quiet luxury fashion houses is to use less-traditional forms of trademark such as position marks, where the specific placement of a subtler element in a particular place may render it distinctive.

A second option is industrial design protection. Designs may protect a product’s appearance, contours, colours and patterns. For a product to qualify for registered design protection, it must have ‘individual character’. This test is whether a notional ‘informed user’ would consider the design new and different to the prior art – this ‘informed user’ opinion is also used to determine whether infringement has taken place. The informed user is not necessarily a designer or a fashionista. Even a regular user of clothing like the products of the registered design would qualify as an informed user. In the design arena, the informed user may be someone who merely browses through a brand’s website and familiarises themselves with the look of the products. This means designs must include visual elements which are perceptible to a more typical person – not merely personal shoppers or elite consumers, who buy products based exclusively on wealth.   

Could the lack of visible commercial use erode the power of older, more traditional trademarks? High-end logos and names are unlikely to vanish so completely as to become vulnerable to non-use actions. However, the general public recognises conspicuously-placed and celebrated logos and brands benefit from overt distinctiveness. But without this type of extensive use, the level of enhanced reputation might fade over time.

Without question, the average consumer recognises and values high-fashion brands, notwithstanding the absence of logos. The greater challenge remains how to defend quiet luxury styles from unlawful copying. In our view, by deliberately including unusual and distinctive elements, even though they may be subdued, brands can avail themselves of both trademark and design protections. If quiet luxury or what’s called ‘stealth wealth’ style is to remain a popular long-term trend, designers should consider maintaining sufficient use of their older brand assets so that their reputation and value is not gradually eroded through lack of visibility in the public eye. 

Stobbs lawyer Gretha Cachia is experienced in trademark filing strategy, prosecution, opposition practice and dealing with infringements. She is eligible to practice as both an EU and Irish trademark attorney, and can be reached at [email protected].