By David Tan
The whimsical and ephemeral trends of the fashion world can be confounding and yet rewarding at the same time. As luxury fashion brands such as Gucci, Louis Vuitton, Versace, Balenciaga and Vetements capitalise on ironic cultural references to rejuvenate sales and capture new customer segments, their actions have resulted in unanticipated implications for trademark law. Simultaneously, countercultural commentary is also taking the form of subversive parodic and satirical fashion merchandise which audaciously play with the semiotic signs of these famous trademarks.
I recently published a book chapter titled ‘Logo Hacking, Downmarket Irony, and Counterfeit Chic: A Study of Contemporary Fashion Trends and Their Implications for Trademark Law’ in Charting Limitations on Trademark Rights published by the Oxford University Press which explores the regulation of fashion trademarks from an interdisciplinary perspective and interrogates the bewildering celebration of the conspicuously inauthentic prevalent in luxury fashion today. In summary, the overarching theme of self-disruption that underpins the new fashionable vocabulary that comprises trends such as logo hacking, downmarket irony and counterfeit chic is likely to have significant implications for trademark laws as applied to the world of fashion.
Fashion today has moved out of well-established formats and into new tightly interwoven digital cross-media multiplatform genres. Intellectual property laws have not begun to contemplate how fashion studies as a field can bring valuable interdisciplinary insights to the legal domain of copyright and trademarks. Within fashion studies, fashion scholars are looking increasingly to media and communication studies for theoretical concepts and methodologies so as to more fully comprehend ‘a domain characterized by finely attuned signs and semiotic distinction.’
Self-disruption is the top-ranked trend that fashion executives predict will shape the fashion industry in the immediate future. This is unsurprising since heritage brands like Gucci and Balenciaga have been enjoying soaring profits by paradoxically selling merchandise bearing misspelling of their famous marks (e.g. GUCCY) and ill-fitting ugly clothes (although at the end of 2023, this trend is changing again as consumers appear to be have grown tired of the same disruptive oeuvre that is repeated season after season at Gucci). ‘Logo hacking’ was taken perhaps to the extreme by Gucci under the creative direction of Alessandro Michele who possibly started the trend of ‘self-hacking’ amongst the luxury fashion brands. The ‘counterfeit chic’ movement within the domain of luxury fashion brands has seen heritage luxury fashion houses re-appropriate shanzhai and counterfeit practices for themselves by designing and selling what appears to be cheap and poor copies for the usual designer premium prices.
As these brands gravitate towards new logos, social causes, streetwear and celebrity collaborations to create a cooler image amongst a younger demographic, some of these developments also present specific disruptions to the established doctrines of trademark law. Fashion does not refer simply to clothes, but to clothes in relation to identity, society and politics. It can be regarded as a ‘manufactured cultural object … [and] as a set social relations and communicative systems.’ Essentially, dressed bodies become texts, creating ‘spaces of uniformity and conformity as well as spaces of conflict … in which vestimentary signs and individual and social identity dialogue and translate each other.’
A trademark is as symbolic as it is functional: it does much more than designate source or origin of goods. Judicial and scholarly treatment of trademark law are increasingly making reference to the semiotic nature of trademarks. I have previously written that famous marks or well-known brands like Louis Vuitton, Apple and Nike are alpha brands that carry significant ‘semiotic freight’, and they possess particular configurations of meanings and can offer peculiarly powerful affirmations of belonging, recognition, and meaning in the midst of the lives of their consumers.
For famous marks, the brand signifier/signified relationship would have become universally codified for the consuming public; these consumers will automatically and consistently think of the coded brand meanings and values (the signified) when they are exposed to the signifiers such as the logo. Thus the brand logo or trademark becomes a sign for a predetermined set of cultural codes and consumer experiences associated with the brand. Thus when Gucci introduces the subverted sign ‘GUCCY’ alongside the ubiquitous well-loved ‘GUCCI’, it is drawing on the consuming public’s familiarity with the affective encoded meanings associated with ‘GUCCI’, and advancing a new cultural narrative that resonates better with the millennial generation evident by the increased sales.
Reading trademarks semiotically can reveal how such signs can ‘reproduce the existing social struggles in their images, spectacle, and narrative.’ There is a significant emphasis in contemporary cultural studies on the notion of audience participation – be it their complicity or resistance – in the hegemony of cultural texts propagated by their authors or producers. It is in these studies of semiotic disruptions that one may find the relevant tools for understanding expressive uses of marks within trademark doctrine that addresses the countercultural agenda of the active audience.
Keywords: Intellectual Property, Trademarks, Fashion, Cultural Studies
AUTHOR INFORMATION
Professor David Tan is the Co-Director, Centre for Technology, Robotics, Artificial Intelligence and the Law at NUS Law.
Email: david.tan@nus.edu.sg