While Cult Gaia may not be in the luxury goods space, the legal issues at the base of the appeal are the same and important for luxury goods companies to consider.
In 2013, Cult Gaia marketed what became a hot item, a bamboo “Ark Bag,” which was heavily promoted on Instagram and other social media.Three years later, in 2017, Cult Gaia filed an application in the United States Patent and Trademark Office to register the design as the company’s “trade dress.”
Unlike patents and copyrights, trademarks including trade dress are not directed to protecting creativity. Rather they are meant to protect the right of one company to identify products as its own and protect consumers from confusion as to who makes the item.Trademark rights are obtained not through creation or invention, but through use of the trademark in connection with the product.
In considering whether the Ark Bag was generic, the TTAB reviewed the evidentiary record in the USPTO to determine whether Cult Gaia met this burden. On this ground, and on commentary and articles promoting nearly identical handbag designs in fashion collections as well as articles by experts in the fashion industry to the effect that the design was a known design originating from multiple sources, the TTAB found that Cult Gaia failed to show that the Ark Bag was not generic.Next, as an alternative ground for registration refusal, the TTAB turned to whether the bag had acquired distinctiveness through commercial recognition.
Cult Gaia claimed that its use of the design was substantially exclusive, but the evidentiary record showed multiple identical third-party handbags on the market prior and subsequent to the Cult Gaia Ark Bag launch date. Although such evidence of unsolicited media coverage is worth its weight in gold in proving acquired distinctiveness, in this case, it was insufficient to overcome the weight of the other factors.
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