The fashion world is incredibly focused on iterations, drawing on historical style choices and reusing them over time. Because of this, it is an interesting question to consider what products can be registered as a distinct trademark – and what cannot. If a product design achieves popularity in the present, is that enough to claim the design distinctive and warrant the registration of the design as a trademark?
The trademark application for a Cult Gaia bag has revolved around this question through a years-long process. The registration was recently denied on the basis that the bag design is too generic to register as a trademark.
Generic vs. Distinctive
We know what these words mean outside of the intellectual property world. But what meaning do they take on when applied to a trademark application?
A trademark’s strength is determined by its distinctiveness. This is the degree to which consumers can identify you as the source of the product simply by looking at it.
An example of a strong mark would be the Target logo. Many stores do not even put the word “Target” on their signs anymore. Consumers know what the Target symbol stands for when they see it from the road.
A mark is considered too generic to register when it is a common industry design or word. This was the determination in In re Odd Sox LLC. Odd Sox attempted to register the packaging for its socks, which features the socks hanging side by side.
The TTAB found this to be commonplace in the sock industry. They argued that no consumer would see that packaging and immediately think of Odd Sox. They would not allow the registration of the packaging design as a trademark.
So, Is Cult Gaia Generic or Distinctive?
Cult Gaia has been selling Ark bags since 2013. The original design looks like this:
The question TTAB lawyers asked: when consumers see this bag, do they associate it with Cult Gaia?
The bag did crest in popularity in 2017. It is possible that, for a short amount of time, consumers would have primarily called the Ark bag a Cult Gaia creation.
However, fashion bloggers, reviewers, and historians would disagree. Some identify it as a vintage design pre-dating Cult Gaia by at least 50-60 years. Some say that it originates in Japan. Designer David David released a similar bag in his Spring/Summer 2010 collection. Online sellers from Etsy.com and elsewhere were distributing the bag prior to 2013.
Even Cult Gaia marketing materials have called the bag a “reproduction of the classic Japanese picnic bag.” The trouble for trademark registration is that the bag comes from multiple sources. There is no clear, primary owner of the mark. And its popularity has risen and fallen through different designers, brands, and producers over time.
Thus, although the Ark bag had its time in the recent limelight on the arms of Beyoncé and Jessica Alba, the conclusion remains the same: the shape of this bag is too generic and too diffuse over fashion history to give Cult Gaia the exclusive right to claim it as a trademark.