Fashionably IP

Rebecca Field and Lee Curtis discuss the concept of the ‘average consumer’ in EU and UK trade mark law. Why is it important, and why is it different to the concept of ‘the informed user’ in EU and UK design law? Rebecca and Lee also apply the concept to a well-known fashion case.

Timestamps:

• 2.29: what is or more accurately who is the average consumer for the purposes of trade mark law.
• 6.12: what is the average consumer not a fashion case and describe how the concept of average consumer was applied practically to it

Overview: 

Rebecca Field and Lee Curtis discuss the famous Crocs clog, when it was launched, why it became so successful and some of the intellectual property issues and cases associated with the famous clog.

 Timestamps:

• 1:44 - History of the development and launch of the well Crocs sandal or clog
• 3:18 - The first one concerns trade mark law and is a relatively recent case in the UK, is it not
• 6:45 - What was the Hearing Officer’s reasoning of this point?
• 10:20 - Has design protection impacts the world of the Crocs clog?

Overview: 

Rebecca Field and Lee Curtis interview Theo Barclay of 4 New Square on the recent IPEC case of Fendi Italia SRL, Loewe S.A., Christian Dior Couture S.A, Celine S.A and LVMH Moet Hennessy Louis Vuitton SE against Rolo Fashion Limited and Georgia Aldridge regarding the sale of non-genuine branded fashion products by the social media influencer Georgia Aldridge. We delve into the facts of the case, how the enquiry as to damages was made, and some practical tips for brand owners and, indeed, influencers in the world of fashion social media influencing.

Timestamps:

• 2:39 facts of that case and the issues it dealt with
• 7:18: how the court made that assessment in this case and some of the principles they applied?
• 15:01 Is that a fair assessment of the judge’s position or is it more subtle than that? Should brand owners be at all concerned by such a finding?
• 17:18 She seemed to be directly promoting products she had full knowledge were not genuine and in contrast many third-party social media influencers did not have a particularly arm’s length relationship with the promoted product. Is that a correct assessment?
• 18:22 Are there means by which an influencer can reduce their liability in such situations?

Overview:

Rebecca Field and Lee Curtis discuss when EU Registered and Unregistered Designs and UK Supplemental Unregistered Design Rights are considered to be new and to have individual character. These are important concepts when considering the validity of such rights. Rebecca and Lee apply those concepts to two fashion IP cases.

Timestamps:

• 2:21 - Can you explain what is meant by ‘new’ under UK and EU design law?
• 3:58 - EU registered and unregistered design rights
• 8:38 - Fashion cases
• 11:28 - Is there another fashion case of interest to you, Rebecca, which illustrates some of the points made in this podcast so far?

Overview:

Rebecca Field and Lee Curtis began recording the Fashionably IP podcast back in May 2022 and have now produced and released fifty episodes. They have discussed and touched on multiple cases and issues relating to IP in the world of fashion. In this episode, they review the important concepts and cases, in their eyes, of the previous forty-nine episodes of the Fashionably IP podcast, adding some hindsight and new comments.

Timestamps:

• 3: 25 - What subject has come up a lot on the podcast?
• 9:11 - Is there another issue which has sparked your interest Rebecca when recording our podcast?
• 11:25 - Are there any other issues and concepts which we have discussed on the podcast which are particular interest to you Rebecca?
• 12:27 - Are there any issues which have particularly sparked your interest which we have discussed in the podcasts?
• 13:55 - Are there anyone you wish to thank now for help with the podcast over the last four years, Lee?

Overview:

Rebecca Field and Lee Curtis of HGF discuss the Phase II changes of EU Registered Design Law coming into force on 1st July 2026 and their impact on the world of fashion. There is a recap on the Phase I changes which came into force in May 2025 and a brief recap on the consultation on changes to UK design and copyright law which ended on 27th November 2025.

Timestamps: 

• 4:59 - What is the key change being introduced by the Phase II changes to the world of EU registered design protection?
• 8:45 - Are there any other Phase II reform changes?
• 10:52 - So change is not only coming to the EU Registered Design Regime but changes are in the air with regards the UK design regime
• 13:30 - What do all these changes and proposed changes mean for the protection of fashion designs in the UK and EU?

Overview:

Rebecca Field and Lee Curtis of HGF discuss the recent decision of the Court of Justice of the European Union in the Faure Le Page case which concerned the use of a year in a trade mark, 1717, and whether that wrongly imparted heritage and prestige on the trade mark which could be viewed as deceptive and a basis for invalidity for a series of French trade mark registrations.

Timestamps:

• 2:28 – Overview of the factual background to the Faure Le Page case
• 6:31 – Considerations addressed by the CJEU in this case
• 9:39 – Reference to other notable CJEU decisions in this field
• 11:10 – Final ruling of the CJEU in this case

Rebecca Field and Lee Curtis of HGF interview Professor Alexandra Roberts of Northeastern University in Boston on US trade dress law. What is trade dress? How can it be infringed? How does trade dress apply to the world of fashion?

Timestamps:

• 4:28 - Can you explain what US trade dress is designed to protect? Do you have to register trade dress in the US to get protection?
• 10:18 - Could you explain how you infringe US trade dress?
• 12:14 - Where did trade dress come from and was it or is it particularly apt for any particular industry?
• 15:24 - Are there any particularly interesting cases on US trade dress on fashion items

Rebecca Field and Lee Curtis discuss the importance of personal names in the world of fashion and a recent decision of the CJEU concerning the registration of a trade mark relating to French fashion designer Jean-Charles de Castelbajac. Did the use of the name JC de CASTELBAJAC post-registration, after the sale of the underlying business, lead to a trademark registration for the name to be invalidated on the basis of deceptiveness?  Is this decision contrary to the well-known decision relating to the name ELIZABETH EMANUEL, or does it build on that earlier decision?

Timestamps:

• 2:38 - Why is the issue of designer names and trade marks an issue particularly pertinent to the world of fashion?
• 4:44 - What was the key case on the issue?
• 12:08 - Most recent case on this subject
• 16:21- Is the JC/DC case contrary to the decision in the ELIZABETH EMANUEL case?

Rebecca Field and Lee Curtis discuss the concept of ‘overall impression’ in registered design law in the United Kingdom and European Union. Rebecca and Lee also discuss where a claimant was successful in an action for registered design infringement in a fashion case and how overall impression came into play.

Timestamps:

• 1:34 – The concept of overall impression in UK and EU registered design law?
• 7:01 - Where does overall impression come into play with regards the validity of UK and EU registered designs
• 9:31 - Can you discuss a case where a registrant was successful in a registered design claim for an item of fashion in the UK