By Devangini Rai LL.M. 2024
In an industry ruled by trends, the nature of quiet luxury brands radically challenges how we view usage of trademarks in fashion. The term “quiet luxury,” which rose to prominence in the fashion industry in 2023, refers to the trend of logo-less branding. Some examples of quiet luxury brands include Loro Piana, The Row, Tom Ford, Max Mara, and Zegna. Quiet luxury became popular after the hit HBO show Succession, which featured characters wearing apparel exclusively sourced from quiet luxury brands. Apart from television, Gywneth Paltrow’s “billionaire chic” quiet luxury looks during her recent civil trial grabbed attention across media. Catering primarily to the uber-rich consumers, quiet luxury brands are characterized by their subtle marketing and high prices. Instead of focusing on marketing through stylized fonts or logos, quiet luxury brands market their products as sustainable and timeless, which are worn by consumers to signify stealth wealth.
The growth of quiet luxury is associated with a new wave of consumerism where consumers are no longer swayed by big logos splashed across the market. Rather, consumers wish to project their stealth wealth by wearing clothes with subtle branding. Quiet luxury brands are noted to manufacture products marketed without any logos or with low-key logos, and are made in muted colors with sustainable materials. This is contrasted by the rather conspicuous branding of loud luxury products with visibly splashed logos such as Balenciaga jackets, Chanel belts, or Louis Vuitton monogrammed bags. Notably, quiet luxury brands seek to harp upon consumer behavior that is fueled by the notion of “if you know, you know,” to appear exclusive to their consumer base.
For consumers, the primary purpose of trademark law is to act as a guarantee of the product’s quality. Therefore, a trademark should be distinctive enough to differentiate a brand’s products with other brands. Further, using a trademark allows brands to gain the “financial, reputation related rewards associated with a desirable product.” However, a trademark should be non-functional in nature—it should not foreclose legitimate competition amongst producers by controlling a useful feature of the product. In the fashion world, some brands have been extremely successful in creating impactful branding using distinctive colors. Established fashion brands in the past such as Christian Louboutin, Hermes, and Tiffany have been able to assert trademark rights over the colors red, citrus orange, and robin egg blue due to their continued and visible association with the colors. Ruling on trademark rights over colors, the Supreme Court in Qualitex v. Jacobson Products held that a trademark can be asserted on colors that have a distinguishing function without any other significant function such as affecting the cost or quality of the article. To oppose trademark rights on colors, the defendant there argued that it would deplete the supply of usable colors which would affect other producers’ ability to compete in the market. However, the Supreme Court rejected the defendant’s color depletion argument by holding that, should a color depletion situation arise, a trademark shall not be granted on it due to its functionality. As opposed to a trademark’s requirement of being distinctive, the glaring absence of well-developed brand iconography for quiet luxury brands poses questions from a trademark perspective. While inconspicuous branding on apparel might be the next big thing, knock-offs will probably never go out of fashion. For instance, Loro Piana advertises its footwear, such as its OpenWalks series, by referring to them as the “Loro Piana White Sole Shoes,” thus demonstrating a visibly strong intent to assert trademark rights on white soles. In December 2023, a Turin court ruled to protect the white sole on Italian quiet luxury brand Loro Piana’s Open Walks Chukka boots. The court enjoined the defendant, a competing brand, from producing lookalike shoes that copied the “overall shape and main distinctive characterizing elements” of Loro Piana’s Open Walks, including the white sole.
Quiet luxury brands, focusing solely on functional and non-distinctive values such as refined craftsmanship and rich materials, will have difficulty proving source distinctiveness in trademark infringement suits instituted in the US. While Loro Piana was able to enforce its rights in Italy, it would be challenging to enforce the same trademark rights in US courts, however iconic the white soles might be. US courts typically require a heavy burden of proof to establish distinctiveness of a trademark. In Wal-Mart Stores Inc., the Supreme Court held that while a trademark for product packaging can be asserted based on inherent distinctiveness, a trademark for product design would need to show secondary meaning. The Court’s motive in the Wal-Mart opinion was to prevent manufacturers from asserting monopoly rights over product designs that were not capable of acting as source indicators. As the Court explained, a consumer predisposition to immediately equate a product’s design with its source cannot be established as it is usually incorporated in a product for its functional or aesthetic effect only.
As in Wal-Mart, the Second Circuit in Christian Louboutin S.A., emphasized the requirement for a showing of secondary meaning for product design trademarks. In Louboutin, the Second Circuit rejected a trademark claim over the use of a matching red sole with a red outsole, while upholding its rights over the red sole as used with a contrasting outsole. Louboutin relied on extensive sales and promotion of its red-soled shoes to argue that its red-sole was known worldwide and had gained a secondary meaning. The 2nd Circuit upheld Louboutin’s trademark rights in its product design for the red sole only after Louboutin showed secondary meaning of the red sole contrasted by a different color of the upper portion of the shoe, but did not extend protection to red soles generally.
Similar to Louboutin, Loro Piana sought to enforce trademark rights in the design of their shoes while also promoting the white sole of their Open Walks shoe series, as noted above. There are multiple reasons why Loro Piana would have a steeper climb to trademark a white sole in the U.S. Compared Louboutin’s red sole, which in itself was a novel idea when it was first introduced, the white sole is a common aesthetic feature in many shoes. Thus, Loro Piana arguably needs to prove a much higher degree of acquired distinctiveness and recognition of white soles in the market than what Louboutin proved before the Second Circuit.
It is here that the quiet luxury status of brands becomes paradoxical. Using subtle, low-key branding and riding high on a “if you know, you know” wave might further their niche status, but it does not help quiet luxury brands strengthen trademark rights over features that are inherently functional. Trademark infringement suits filed by quiet luxury brands in the future are likely to pose questions for U.S. courts to grapple with while dealing with their trademark rights in product design.