In a legal sense, a brand is defined as a sign that is open to graphic depiction and that can be used to distinguish the goods or services that an organisation offers. In short, a brand is a distinctive sign. External product characteristics are open to graphic depiction too, but are almost never eligible for trademark protection. This is because they are rarely deemed capable of distinguishing the product in question, despite the fact that product characteristics are actually recognised as an indication of origin.
No ordinary brand
Although the general rule is that the assessment of a product characteristic as a brand may not be different to that applicable for an ‘ordinary’ brand (a word mark or a logo, for example), case law shows that public perception is different where ‘unorthodox’ brands are concerned. In other words, the public finds it more difficult to see an indication of origin in product characteristics.
Pattern, shoe laces, toe tips of socks and ear buttons: not brands A ruling by the court of appeal determined that the pattern on a glass surface could not be a brand because this surface could not be viewed separately from its technical function and, what is more, that the surface gave (and contributed to) the fundamental value of the product. For the same reason, the red ends on shoe laces and the orange toe tips of socks and, recently, the buttons used in the ear tags of the famous Steiff teddy bears were not regarded as brands. The court of appeal also ruled that these ‘characteristics’ do not vary fundamentally from what is customary in the sector, because decorations are actually customary. Where product characteristics are concerned, ‘distinctiveness’ apparently involves a fundamental deviation from what the public is used to seeing in the sector in question.
Shoe soles: brands!
The red shoe soles used on Louboutin ladies shoes are an example of a product characteristic that is regarded as distinctive and, as such, as an indication of origin. So, does this mean that the public are not used to seeing shoes in different colours (red, for example)? In theory they are, but Louboutin managed to prove that its red soles are well-known in the sector, because of which they are immediately recognised as a brand. As such, this is where the solution lies for the trademark owner. Please remember: product characteristics are rarely recognised as brands. The most promising ‘solution’ is to demonstrate that the characteristic in question is well-known in the sector. The major challenge for the brand owner is to create this reputation and then prove it!