Searches for all things Marine Serre are on the rise. According to data from fashion discovery platform Lyst, consumers are increasingly on the hunt for garments and accessories from the Paris-based brand, with searches growing by 22 percent on a month-on-month basis as of mid-March. Of particular interest among those seeking out wares from 28-year old Serre’s eponymous label? Those printed with the little crescent moon symbol that have come to act as the brand’s logo. “Marine Serre’s Moon-print Stretch-jersey Top was the most viewed product of the brand over the past month,” a rep for Lyst told TFL.
Not exactly a household name, Serre – who showed her first full collection in Paris in February 2018 (after winning the LVMH Prize for Young Fashion Designers the year prior) – has, nonetheless, found a following within the high fashion sphere. “From New York to Paris, the brand’s instantly identifiable moon print leggings and tops have appeared across all four fashion week cities, solidifying the designer’s status as one to watch,” according to fashion site WhoWhatWear. In the process, the brand has also found fans in an array of big-name celebrities, from nearly all of the Kardashian/Jenner women and the likes of Beyoncé to K-pop stars Sandara Park and Jennie Kim, and singers Ariana Grande and Dua Lipa, who have all worn crescent moon-adorned wares from Serre’s collections.
Garnering famous fans, and also big-name collaborations, such as one with sportswear behemoth Nike, Marine Serre has managed to steadily expand the footprint of her brand beyond purely fashion industry circles, and a big part of the mounting appeal and growing level of consumer recognition can be tied to the brand’s logo, the crescent moon that consistently appears on its garments and accessories, which is coming to serve as a visual indicator of the burgeoning young brand.
Building an Arsenal of Assets
With such rising brand awareness and trademark rights in mind, Marine Serre has been looking to secure trademark registrations across the globe. To date, this has largely seen legal counsel for the brand file – and receive – trademark applications for the crescent moon along with the brand name for use on clothing and accessories in the U.S. (i.e., no. 79233495 and no. 79284425), Canada, France, Singapore, Australia, and with the World Intellectual Property Organization, among other jurisdictions.
Presumably anticipating pushback from the various trademark offices should it seek to attempt to register the little moon symbol on its own, the brand added its name to the mix in order to more easily secure registrations – likely with the aim of ultimately amassing rights in the symbol on its own.
More recently, it appears as though Marine Serre is working towards that goal to some extent, as the brand filed a trademark application for registration with the European Union Intellectual Property Office (“EUIPO”) for a moon-centric mark. In September 2019, it filed an application for a mark that consist of a repeating pattern of the crescent moons for use on clothing and accessories, but has faced obstacles in terms of registration almost immediately.
In October 2019, the EUIPO issued a provisional refusal, asserting that the repeating moon pattern does not actually act as a trademark and instead, is decorative in nature.
Responding to the EUIPO’s initial refusal, Marine Serre argued in December 2019 that “the mere fact that a mark fulfills a decorative function does not affect the assessment of its distinctive character,” and thus, its ability to serve as a trademark. “The mark in question, although also decorative, distinguishes Marine Serre’s products [from those of others],” largely as a result of the brand’s significant and consistent use of the mark, which the brand demonstrates by way of an array of third-party media attention in the European Union (as well as in the U.S.) that makes mention of its use of the moon symbol beginning in 2016.
Marine Serre claimed that “not all of the clothing in [its] collection contains [the moon] mark,” which means that the mark “will therefore not be purely perceived as decorative, but rather as an indicator of the origin” of the products upon which it appears.
In a subsequent refusal dated February 11, 2020, the EUIPO stated that “after careful consideration of [Marine Serre’s] arguments,” it has decided to maintain its objection and refuse registration for the mark, in large part because the moon pattern is “devoid of any distinctive character.”
According to the EUIPO’s decision, the multi-moon pattern “gives no indication of the commercial origin of the products [on which it appears] and does not make it possible to distinguish them from the products of other companies.” On the contrary, “It only symbolizes banal decorations that the relevant public will immediately perceive as a representation of a particularly interesting or attractive detail of the products in question (to which they will attribute the development to Marine Serre) rather than as an indication of its commercial origin.”
In short: The multi-moon design “does not present any element that is easily and immediately identifiable by the relevant and attentive public, and [thus], it will be exclusively perceived as a decorative element.”
Referring to Serre’s existing marks, the EUIPO stated that “it is true that ONE crescent moon … accompanied by the name of the designer is perfectly acceptable” as a trademark. However, the trademark body stated that “it is not the same when it is a multitude of crescents on any surface [which]is not a distinctive sign in itself and the combination of these elements is not either because the public will perceive it as a simple decoration on a shoe, on a jersey, on a tie-shirt, on a jacket, etc. … (or on other products) and not as the commercial origin of the products claimed.”
Speaking to Marine Serre’s argument that the mark is not merely decorative and has acquired the requisite distinctiveness in the minds of consumers to act as a trademark, the EUIPO says that it is not persuaded that “at least a significant fraction of the relevant public [can] identify, thanks to the mark, the goods or services concerned as coming from a specific business.”
While Marine Serre submitted excerpts from media outlets in France, England, Belgium, the Netherlands and Italy that feature the brand’s use of the moon as evidence of acquired distinctiveness, the EUIPO said that it failed to provide examples of “use in the remaining EU countries.” As for images and examples of its promotion of moon-emblazoned garments and accessories by way of its collections, Instagram page, and website, and images of celebrities wearing Marine Serre garments, including its collaboration with Nike for the Women’s World Cup, the EUIPO says that these “do not prove that the sign has acquired distinctive character through its use: this only proves that the sign is used, but not that it has become distinctive as a mark in the eyes of the consumer concerned.”
“All the evidence provided corroborates nothing other than the existence and promotion of the sign and the products by [the brand],” the trademark body asserts, noting that Marine Serre failed to “provide evidence concerning the [monetary] investments [it has] made to promote its products” and “information as to the exact market share held by the brand for the whole of European territory.” Still yet, the EUIPO stated that use of the mark beginning in 2016 is not long enough “to give the mark distinctive character” simply as a result of use.
Serre had two months to appeal the EUIPO’s decision but seemingly opted not to do so. Although, the EUIPO still lists the application as “under examination.”
As for whether the brand can ever amass rights in the moon mark and a repeating variation of it, it certainly would not be impossible. As trademark professor Alexandra Roberts stated in her 2017 article, Trademark Failure to Function, “Almost anything can function as a trademark,” as long as it is actually used as a trademark. In other words, it must be used “in a way that will draw consumers’ attention to it and lead them to view it as a source indicator.”
Roberts notes in that same article, a mark can be decorative and source-indicating at the same time. For instance, “A mark can be … a decorative source indicator like the Nike ‘swoosh.’” Against that background, she states that “the emphasis for use as a mark must be on the matter’s failure to function as a source indicator – its failure to do the job of a trademark – rather than its simultaneous role as something else.”
The End-All, Be-All for Modern-Day Luxury Brands
Marine Serre would hardly be the first brand to co-opt an existing or ordinary otherwise element or elements (hergraphic of choice reportedly dates back to 2300 BC) and use it as an indicator of her brand. Nike built a multi-billion dollar brand around a stylized checkmark logo (i.e., its famous swoosh trademark), while Gucci maintains rights in a configuration of green-red-green stripes. Granted, it took decades – not four years – and tens of millions of dollars (if not hundreds of millions or more) in advertising and marketing for both of those brands to be able to accurately claim that when consumers see those marks, they can readily link them to a single source of goods/services.
With that in mind, and assuming that Marine Serre engages in consistent use and marketing of the trademark, it is not entirely unfathomable that the swiftly growing and increasingly sought-after brand could get consumers to link its specific use of the moon symbol with a single source when it is used in connection with garments and accessories, such as the high fashion ones it shows on the runway or the sports-centric wares born from its collaboration with Nike.
In terms of why such trademark rights are important, well, in the crowded fashion market, where consumers have a plethora of options if they are seeking out a $1,500-plus handbag or a designer pair of pricey shoes or sunglasses (which are the core money-makers for high fashion and luxury giants), a large part of what draws consumers to different products is the logos at play and maybe more importantly, the goodwill that is embodied in them as a result of decades of continuous use and extensive marketing. The reputation surrounding Chanel, for instance, which is embodied in its famous double “C” logo, draws many consumers to its quilted leather handbags and logo-emblazoned eyewear. The same goes for Goyard’s logo-patterned tote bags, and the coated canvas, interlocking “G” print-adorned handbags that Gucci offers.
To a substantial extent, the offerings of many fashion brands are relatively similar; it is the branding and marketing at play, including the promotion of the likeness of a brand’s creative director, that tends to set them apart, particularly when it comes to the average consumer. This suggests that it is not enough to simply make attractive garments and accessories, at least not if a company is looking to compete at the upper echelon of the industry and/or attract acquisition interest from industry titans. Branding is at the heart of the fashion industry, even for true luxury brands like Hermès, which – despite its well-known dedication to craftsmanship – still benefits to a significant extent from the Birkin bag mystique and exclusivity-centric messaging tied to its trademarks.
Ultimately, the level of consumer identification of and draw to branding is one of the primary and most valuable assets at play when it comes to fashion and luxury brands, and it is no small part of what industry groups look for when seeking out new acquisition targets, as it is a valuable and highly monetizable asset. Conglomerates like LVMH and Kering are well adept at – and frankly, in the business of – developing and leveraging intellectual property rights (namely, trademarks) in order to sell large volumes of accessible products (compared to their runway offerings), whether they be logo-adorned t-shirts or patterned handbags, making trademarks and the messages that they send to consumers something of the end-all, be-all for modern-day luxury brands.
As of right now, the Marine Serre brand may be a largely niche one. However, with such budding logo recognition at play and continuing efforts by the brand to bolster that further (as evidenced by more mainstream efforts, such as its collaboration with Nike), it would not be surprising if, at some point, the luxury powers that be seek to scoop up ownership of Serre’s brand. If Lyst’s search data is any indication, the brand is well on its way.