Will the real Hermès please stand up?

Posted by Charles Colman

So you consider yourself a fashion connoisseur?  Let's test your ability to spot the real Hermès.


 

Option 1:





Option 2:





Option 3:





Will the real Hermès please stand up?


[All remain sitting.]


Yes, trick question.  The first two items are self-proclaimed "replicas" of Hermès bags, available on websites very likely based abroad.


The third bag is, as the tag suggests, made by "Hunter" (that of the rubber boots LOF should have purchased two months ago.)  Query whether, once the brown "HUNTER" tag is removed, any significant portion of the relevant consuming public is "likely to be confused" about the source of this bag.  (As usual, LOF takes no position either way.)  It might be fun for onlookers, if not for the parties themselves, to debate the impact of serifs on the likelihood of confusion analysis.  Also of potential interest is the fact that the "H" used in the Hunter bag is essentially identical to the "H" used in its all-purpose logo; contrast that "H" with the first letter of the well-known Hermès logo:


                        


Font aside, anyone with affection for Hermès likely knows that orangish-red is something of a "signature" color for the company.  Take a look at this very real, very expensive Hermès belt:





While readers of this website probably know that the "H" may serve as a trademark, LOF has not yet discussed the U.S. Supreme Court's unanimous ruling in Qualitex v. Jacobson Products Co. that a color, by itself, may in some instances suffice to constitute a trademark.  So, when, exactly?

 

First off, consistent with general principles of trademark law, a color may not serve as a trademark where it is "functional" -- that is, "if exclusive use of the feature would put competitors at a significant non-reputation-related disadvantage."  To illustrate, LOF can think of no obvious reason why bags or belts have to be this particular shade of orangish-red, but if a company tried to monopolize the color red for, say, warning signs, the USPTO and the courts would almost certainly balk.


(One problematic wrinkle to the functionality rule is the so-called "aesthetic functionality" doctrine, which this website explains is applicable to a "product design feature which is an important ingredient in the commercial success of the product," such as "a floral pattern on china."  LOF will share the joys of "aesthetic functionality" with you at a later -- perhaps much later -- date.)


With that said, even when a color is non-functional, it may only serve as a trademark if it has developed "secondary meaning," i.e., if "in the minds of the public, the primary significance of [the color] is to identify the source of the product rather than the product itself."  For a better (or at least more elegant) example than the dry cleaning pads at issue in the Qualitex case, let's examine the well-known Christian Louboutin "red sole":




To the best of this non-Louboutin-wearing writer's knowledge, the soles of the company's shoes are always red, regardless of the style or color of a particular shoe.  Even the company's Twitter logo emphasizes this feature:




And while red shoes might arguably serve some "functional" purpose -- keeping other people from stepping on your toes, for example -- it is difficult to think of such a purpose that red soles might serve. 

 

All of this may indicate that the Louboutin red sole is indeed serving a non-functional, source-designating purpose -- in other words, that it is acting as a trademark.  But again, LOF won't take a position either way; you'll have to decide for yourself.

 

[This post does not constitute legal advice, or a substitute for legal advice.  No attorney-client relationship has been formed by virtue of this post.  If you would like to consult an attorney, please visit CharlesColmanLaw.com for contact information.]