Louis Vuitton scored a win against start-up sneaker manufacturer LVL XIII, when a federal appeals court affirmed dismissal of the latter’s trade dress suit against Vuitton. The case illustrates the difficulty of protecting new designs, particularly for small fashion and luxury goods startups.
LVL XIII asserted “trade dress” rights in its design of a metal plate at the sneakers’ toe-end – meaning that the design functions as its trademark by identifying the sneakers as it brand. But such claims require a strong showing of consumer association – that the public identifies the design with a single brand owner. That takes time and significant investment of resources to promote and market the design.
As LVL XIII learned to its chagrin, until a high level of consumer association is reached, others are free to copy. And, the very act of copying by others takes away from exclusivity in the design, which can destroy any chance of reaching the required consumer association. This can be especially challenging to small design companies.
Design companies need a strategy for protection. They should consider using additional forms of intellectual property to protect the designs. These rights include design patents and copyright, neither of which require a showing of consumer recognition. That then allows time for the company to build up consumer recognition in the design and gain trade dress rights.