Quiet Luxury by Sam Kilb

"It’s important to seek federal trademark and copyright registrations to secure rights and stop the rampant copycat industry from eroding carefully crafted goodwill."

Over the past several seasons, the fashion industry witnessed the rise of “quiet luxury”—a style that emphasizes understated elegance and minimalism over ostentatious branding. This trend poses a unique challenge for fashion brands: how to differentiate their products in a subtle yet impactful (and importantly, legally protectable) way. However, there are several tools available for brands looking to maintain a visible and recognizable presence while still capitalizing on recent trends.

One solution lies in the strategic use of subtle brand indicators. Subtle branding involves using discreet logos, tags, or design elements that are identifiable to those who know what to look for, but are not overly conspicuous. Just because the design element is subtle doesn’t mean that it can’t be an incredibly powerful indicator of source. A classic example is the recognizable red tag on Levi’s products, a small yet distinct label that is capable of instantly communicating the brand to consumers. Similarly, UNTUCKit’s shirts feature a small triangle on the hem, a subtle indicator of brand identity. It doesn’t have to be a tag—some design elements, like stitching patterns, can be source-identifying and receive trademark protection provided certain requirements are met. These understated marks serve as a powerful branding tool, creating an exclusive appeal while maintaining the minimalistic ethos of quiet luxury.

In addition to the brand at large, these marks could be used to distinguish between product lines or different materials incorporated into the products. For example, Nike has trademarks for its Dri-Fit and Flyknit materials, sub-brands that have developed reputations of their own despite never being splashed across the product in the way the Nike Swoosh has been. Gore-Tex has used its mark and proprietary materials to enter into a large number of high-visibility collaborations, lending its subtle but recognizable diamond logo to many popular clothing companies and boosting the value of its brand in the process.

From a legal standpoint, these brand indicators can be protected through trademark and even copyright law, ensuring that the brand retains exclusive rights to these unique features. Trademark protection prevents other companies from copying or using similar marks, which could cause confusion among consumers. This protection is vital in the fashion market, where brand identity and perception drive consumer purchasing decisions, and it’s important to seek federal trademark and copyright registrations to secure rights and stop the rampant copycat industry from eroding carefully crafted goodwill.

The challenge in quiet luxury branding is ensuring that these subtle indicators are distinctive and recognizable enough to qualify for trademark protection. To achieve this, brands must carefully design these elements to reflect their identity and distinguish their products in the marketplace.

Beyond subtle branding elements, trade dress protection offers another avenue for safeguarding a brand’s unique aesthetic. Trade dress refers to the visual appearance of a product or its packaging that signifies the source of the product to consumers. This can include the shape, color, texture, or even certain sales techniques. In the fashion industry, trade dress is particularly relevant for items with a distinct look, such as handbags and footwear.

For instance, consider the iconic shape of an Hermès Birkin bag, the red-lacquered soles of Christian Louboutin heels, or the iconic, red shape of MSCHF’s Big Red Boots. These are not just design elements—they are identifiers of the brand itself. By filing for trade dress protection, fashion companies can legally protect these unique features. Trade dress protection, once granted, can be incredibly powerful, as it does not expire as long as the design continues to be used and remains distinctive.

However, obtaining trade dress protection is not straightforward. A brand must prove that its design is not functional (i.e., the design feature is not essential to the use or purpose of the item and does not affect the cost or quality of the item) and has acquired distinctiveness (i.e., consumers associate that design with a particular source). This process often requires substantial evidence and can be more challenging than a simple trademark registration.

Moreover, the question of functionality is particularly complex in fashion, where aesthetics play a crucial role. For example, in the case of Christian Louboutin v. Yves Saint Laurent, the issue was whether Louboutin’s red soles were a protectable trade dress or a functional element of the shoe. The court eventually ruled that the red sole had acquired enough brand recognition to merit protection, provided the rest of the shoe was a contrasting color.

As the trend of quiet luxury continues, at least until we return to the more garish, logo-splashed designs of the past decade, fashion brands must navigate the delicate balance of maintaining an understated style while protecting their brand identity. Subtle brand indicators and trade dress protection emerge as key strategies in this regard. Brands need to thoughtfully design and legally protect these elements to differentiate themselves in a crowded market. By doing so, they not only preserve their brand’s exclusivity but also build a legal moat that safeguards their unique aesthetic and brand value.