Louis Vuitton’s Damier checkerboard pattern continues to lack trademark protection. According to the European Union’s General Court on April 21, 2015, the design is considered to be too commonplace to be owned by one brand. The EU’s decision affirmed a 2011 ruling by the First Board of Appeal of the Office for Harmonization in the Internal Market (OHIM). According to that decision, the checkerboard pattern was composed of very simple elements and had been commonly used in relation to various goods. Without any features to distinguish it from other checkerboard representations, it could not function as a source, or origin, indicator.
The 2011 decision overturned Louis Vuitton’s right to exclusively use both the brown Damier pattern as well as the black and white version. The trademark was originally registered in 2008, and a year later a German retailer filed to have it invalidated. The mark was declared invalid in the 2011 decision, and Louis Vuitton has since been attempting to successfully appeal.
A trademark is a word, name, symbol, device, or combination thereof used to identify and distinguish goods from those manufactured or sold by others and to indicate the source of the goods. For a mark to indicate a source, it must be distinctive. There are four categories a mark may fall within in determining whether it is distinctive. The strongest word marks are fanciful or arbitrary. Fanciful marks are made up words, while arbitrary marks have nothing to do with the products or services sold under the mark. Because they evoke a product’s source, they are inherently distinctive. Less strong word marks are suggestive; they may relate to the type of goods provided, but require some imagination to reach a conclusion as to the exact nature of the goods. Finally, descriptive or generic marks are inherently non-distinctive. Descriptive marks directly describe a function, feature, element, or characteristic of a product, or they may be geographic or laudatory. These marks are not protected until the brand becomes well-known enough to acquire secondary meaning such that consumers associate the products with a particular source.
Generic marks are common words or terms associated with goods (e.g., Chair for chairs). Generic marks cannot receive trademark protection, even with secondary meaning. Applying this to Louis Vuitton’s checker pattern, it is analogous to a generic word mark. The pattern itself is relatively non-distinctive, made of simple elements that have been commonly used with a decorative purpose on such goods by many different companies.
Protecting fashion designs or patterns is much more difficult than simply protecting word marks. Trademarking the Damier pattern would essentially give Louis Vuitton a monopoly over the checkerboard pattern, thus precluding any other fashion designers from using it. On the other hand, distinctive logos may receive trademark protection, so the Damier pattern with the company’s logo or some other distinctive features would likely be protectable.
To discuss trademarking your intellectual property, whether internationally or within the US, contact the experienced Orange County trademark attorneys at MYBE Law today.