An examining attorney for the U.S. Patent and Trademark Office (“USPTO”) failed to consider the impact of the inclusion of quotation marks when she refused to register one of Off-White’s trademarks, the brand argues in a new filing. In response to the latest in a string of refusals issued by a USPTO examiner in September, counsel for Off-White argues that the examining attorney got it wrong in determining that Off-White’s “FOR WALKING” mark fails to function as a trademark for “footwear” specifically because it is more likely to be perceived by consumers as “conveying information” about Off-White’s goods than acting as an indicator of their source. 

In the newly filed response, Off-White claims that despite USPTO examiner Shaunia Carlyle’s claims to the contrary, its “FOR WALKING” mark – which it filed an application for back in October 2020 – serves a “source-identifying function due to at least the unique commercial impression created by [Off-White’s] distinct use of quotation marks around the phrase.” As such, counsel for the brand “requests that the failure to function refusal be withdrawn and the application published for opposition.” 

Delving into what, exactly, Carlyle got wrong when she withdrew the application from publication on the basis that it does not “function as a trademark,” counsel for Off-White asserts that the evidence she cites does not establish that the mark is entirely informational, in large part because the cited examples consist of use of the words “for walking” – namely, by fashion websites like Elle and Who What Wear – in connection with footwear, but without the quotation marks. The quotation marks are “part of [Off-White’s] mark as a whole, are highly relevant to the perception and commercial impression of [the] Mark, and must be considered in the analysis of how relevant consumers will perceive the [mark],” Off-White’s counsel asserts. 

Courts “explicitly acknowledge that punctuation, including quotation marks, can change the commercial impression of a mark,” Off-White states, arguing that “the use of written quotation marks is a widely understood and recognized grammatical device for indicating irony and sarcasm, much like air quotes used in verbal communication.” Against that background, Off-White claims that by including quotation marks, the “FOR WALKING” mark “requires a consumer to use imagination, thought, or perception to reach a conclusion as to the nature of [Off-White’s] footwear because [the] mark signals irony.” 

Off-White's For Walking trademark application

Citing media accounts, including one from NME that states that “when you see quotation marks on an item of clothing – such as “FOR WALKING” on a pair of boots – you instantly knew it was Abloh’s work, since it sarcastically announced what the item was,” Off-White argues that the “tongue-in-cheek contradiction between utility and purpose created by the mark and [its] use of quotation marks has been explicitly recognized by the relevant public.” 

Off-White goes on to highlight “over a dozen” other media accounts that link the use of quotation marks to Off-White as evidence of the fact that “for over five years, the fashion industry and media have consistently recognized [its] use of quotation marks as identifying the source of [its] goods” – and not merely “conveying information about” Off-White’s products.

(If this argument sounds familiar, it is because Off-White’s counsel raised similar points in earlier responses, arguing last year that its mark is different from “mere use of the word or phrase without the quotation marks,” as the inclusion of the quotation marks causes the trademark to acts as a “double entendre.” The examining attorney has been largely unpersuaded by such assertions, stating in an Office Action in July 2021, for example, that generally, “adding punctuation marks to a descriptive term will not ordinarily change the term into a non-descriptive one,” and specifically, “here, with and without the quotation marks, the mark implies a feature of the goods – desirable and made FOR WALKING.”)

“Based on at least the foregoing,” Off-White contends that “FOR WALKING” functions as a trademark to indicate the source of its goods, and “to identify and distinguish itself from others,” and thus, “respectfully requests that the refusal be withdrawn.” 

Maybe more interesting than the fight over the “FOR WALKING” mark is the underlying case that Off-White appears to be making that it has sweeping rights in its use of quotation marks regardless of what words appear in between them. After all, the arguments that Off-White makes here (and in previously responses) and the evidence of media attention that it cites tends to center on the use of quotes broadly, as opposed to individual marks (such as “FOR WALKING” or “PRODUCT BAG”). 

As for whether Off-White would ever be able to register its use of quotation marks with some placeholder for holders in between for use on footwear, clothing, etc., we dove into some of the issues with that, including the likelihood that such a mark would be deemed a phantom mark and thus, not registrable, here. 

An ongoing scuffle between Off-White and Walker Wear is no longer limited to the litigation that the latter initiated in a New York federal court this summer in which it is accused Off-White of trademark infringement and dilution in connection with the sale of a “WW” emblazoned jacket. Taking the matter to the U.S. Patent and Trademark Office (“USPTO”)’s Trademark Trial and Appeal Board (“TTAB”) by way of a newly-filed opposition proceeding, Off-White is looking to block the registration of a stylized Walker Wear logo, arguing that it “has been harmed” by Walker Wear’s claim that it maintains rights in the mark, and will similarly be damaged if the USPTO agrees to register the mark. 

In the opposition that it lodged with the TTAB on October 25, Off-White claims that Walker Wear LLC’s application for the “WW XXL ATHLETIC WALKER WEAR” mark (Ser. No. 90592001) should be blocked for a number of reasons, including because Walker Wear LLC misrepresented the ownership of a separate – but related – registration (Reg. No. 3479413) for a stylized “Walker Wear” mark by attributing it to Walker Wear LLC when the company’s founder April Walker “is and has always been the title owner of the registration.” 

For a bit of background, the stylized “Walker Wear” mark is relevant here, as the USPTO issued an Office Action in response to Walker Wear LLC’s application for the “WW XXL ATHLETIC WALKER WEAR” mark in October 2021 with a number of refusals. Among the bases for refusal: Likelihood of confusion with the stylized “Walker Wear” mark, which was registered to April Walker back in 2008 for use on “sportswear clothing.” Pushing back against the Office Action, Walker Wear LLC alerted the USPTO examining attorney that there is no likelihood of confusion at play, as the “Principal/Signatory” of the “WW XXL ATHLETIC WALKER WEAR” mark “wholly owns” the registration for the stylized “Walker Wear” mark, and thus, “there is unity of control.” 

Walker Wear trademark application

Counsel for Off-White is now using this assertion by Walker Wear LLC to call foul, arguing in its notice of opposition to the “WW XXL ATHLETIC WALKER WEAR” mark that Walker Wear LLC “knowingly made this false claim of ownership with the intent that the USPTO would rely on it and to induce the USPTO to withdraw the ‘413 Registration as a bar to registration and to approve” its application for the “WW XXL ATHLETIC WALKER WEAR” mark. In other words, Off-White claims that by telling the USPTO that the two marks have the same principal owner when one is registered to Walker Wear LLC founder/owner April Walker and the other lists Walker Wear LLC as the owner, the company engaged in fraud on the USPTO. 

Given that this “false claim of ownership … was material, as it allowed the Examining Attorney to withdraw the registration [of the ‘Walker Wear’ mark] as a bar to the registration and to approve Walker Wear LLC’s [WW XXL ATHLETIC WALKER WEAR] mark for publication,” Off-White argues that its opposition should be sustained and the USPTO should refuse to register the “WW XXL ATHLETIC WALKER WEAR” mark. 

In case that is not enough, Off-White argues that the “WW XXL ATHLETIC WALKER WEAR” mark should not be registered, as Walker Wear has “abandoned any and all rights it may have had in [the] mark,” which it claims that it first began using in May 1994. Since that date, Off-White contends that Walker Wear has “discontinued its use in commerce of [the] mark with intent not to resume such use.” Counsel for the late Virgil Abloh’s brand maintains that Walker Wear failed to use the mark in commerce “for at least three (3) consecutive years after its alleged first use in commerce,” which is significant, as a trademark holder may lose its rights in a mark if it cannot show consistent and continuous use of that mark on the claimed goods/services. 

Off-White jacket and Walker Wear sweatshirt
Off-White’s bomber (left) & a Walker Wear sweatshirt (right)

And still yet, Off-White asserts that Walker Wear’s application is otherwise void, as the company, itself, was “formed well after [its] alleged date of first use [of the WW XXL ATHLETIC WALKER WEAR mark] in commerce.” Since Walker Wear “could not have used [the] mark in commerce prior to formation,” Off-White argues that Walker Wear filed the application “in the name of the wrong party,” thereby, invalidating the application. 

With the foregoing in mind, Off-White is looking to block the prospective registration of the “WW XXL ATHLETIC WALKER WEAR” mark. In addition to potentially enabling it to chip away at the strength of the claims that Walker Wear made against it in the ongoing lawsuit, this move by Off-White could put pressure on Walker Wear to look to settle the suit. (Walker Wear and Farfetch alerted the court in December 2021 that they had reached a settlement and the claims against the retailer were subsequently dismissed.)

The case has already been cut down by Judge Laura Taylor Swain of the U.S. District Court for the Southern District of New York, who sided with Off-White in September and agreed to dismiss the federal trademark dilution claim and one of the New York General Business Law claims that Walker Wear lodged against Off-White, along with its stockists Saks and Farfetch, in August 2021. 

UPDATED (Dec. 4, 2022): While the opposition appears to still be underway, with Walker Wear filing its answer on Dec. 4, the lawsuit that Off-White waged against Walker Wear has been settled. In an order of dismissal on Dec. 2, the court states that “attorneys for the parties have advised the Court that this action has been or will be settled. Accordingly, it is hereby ORDERED that this action is dismissed with prejudice and without costs to any party, but without prejudice to restoration of the action to the calendar of the undersigned if settlement is not achieved within thirty (30) days of the date of this Order.”

LVMH’s Luxury Ventures investment vehicle has taken a minority stake in budding New York-based brand Aimé Leon Dore. While the terms of the investment, which appears as though it might be the latest deal to have been brokered by Alexandre Arnault, have not been disclosed, LVMH Luxury Ventures typically targets investments ranging from €2 million to €15 million. In a statement on Tuesday, Aimé Leon Dore founder Teddy Santis stated, “LVMH’s vast network of global leaders across the industry and its rich history in growing exceptional storied brands offers a truly unique partnership opportunity to fuel the next chapter of growth for Aimé Leon Dore.”

Growth for Aimé Leon Dore – which was founded in 2014 and has since made its name by way of “sneaker collaborations with New Balance and clothes and accessories inspired by New York City itself, particularly its 1990s hip-hop scene and pick-up basketball culture,” per WWD – is slated to come in the form of new brick-and-mortar outposts, with the brand reportedly planning to open a boutique in London as early as March. At the same time, the almost 8-year-old brand appears to be eyeing endeavors in the metaverse, recently filing trademark applications for registration for Aimé Leon Dore and Café Leon Dore for use in connection with virtual goods and services. 

The deal between LVMH Luxury Venture and ALD is noteworthy for at least a couple of reasons: Primarily, it further points to the prowess and potential deal-making power of the younger Mr. Arnault, who is currently in the role of EVP of Product and Communications at Tiffany & Co., and who has had a hand in a number of LVMH transactions in recent years. Beyond that, LVMH’s interest in Aimé Leon Dore appears to be a nod to the influence that a number of relatively young American brands currently enjoy in the market in a way that has not been seen since maybe Ralph Lauren and co. were getting their start several decades ago.

As for LVMH’s investment arm, itself, it was rolled out by LVMH in 2017 with the aim of buying stakes in “luxury companies with sales of between 2 million and 5 million euros, and a high-growth potential.” Spearheaded by Julie Bercovy, who previously served as co-head of LVMH’s M&A department, the Luxury Ventures arm has had its focus, in large part, on the U.S. market from the outset. For instance, it entered into a “partnership” (financial details of the transaction were not disclosed) with New York-based consignment sneaker company Stadium Goods back in February 2018, ultimately off-loading its stake in the company a year later as part of a $250 million acquisition by Farfetch.

It has since taken stakes in New York-based fashion brand Gabriela Hearst, Los Angeles-based lifestyle brand Mad Happy, and New York-based watch media and e-commerce platform Hodkinee, turnkey social selling software company Replika Software, which is based between New York and Paris, and Los-Angeles-based clean skincare brand Versed.

A U.S. federal court has sided with StockX in connection with the proposed class action lawsuits filed against it in 2019 for allegedly failing to safeguard customers’ information and then failing to inform those same consumers after 6.8 million records were hacked from its website, and “instead, tried to hide the fact by telling users to reset their passwords under the guise of ‘system updates.’” The data breach was subsequently revealed by TechCrunch, prompting a number of individuals to file privacy-centric suits against it in courts across the U.S. for “intentionally, willfully, recklessly, or negligently failing to take adequate and reasonable data-security measures to ensure its systems were protected, take steps to prevent and stop the breach from happening, monitor and detect the breach on a timely basis, and disclose to customers the fact that it did not have adequate security systems and practices to safeguard [their] data.” 

On the heels of a handful of individual class action lawsuits being combined before a federal district court in Michigan, U.S. District Judge Victoria Roberts granted Detroit-based StockX’s motion to dismiss the consolidated class action and compel arbitration in December 2020 on the basis that the parties are subject to StockX’s terms of service, which “always included an arbitration agreement, a delegation provision, a class action waiver, and instructions for how to opt out of the arbitration agreement.” 

However, before the matter could make its way to arbitration, the plaintiffs, two of whom are minors, appealed to the U.S. Court of Appeals for the Sixth Circuit, arguing that the lower court erred in dismissing the case, as there is an issue of fact as to whether four of the plaintiffs accepted StockX’s terms of service. The plaintiffs further claimed that the defenses of infancy and unconscionability render the company’s terms of service, including the arbitration agreement and the delegation provision (i.e., a provision that states that an arbitrator will decide whether the dispute is fit for arbitration), invalid and unenforceable.

Beyond that, the plaintiffs also asserted that regardless of their ages, the arbitration agreement, including the delegation provision, is invalid because it is a “contract of adhesion,” “comprised of boilerplate language, drafted by StockX,” and “lacks the essential element of mutuality,” among other things. In short: the plaintiffs argued that an enforceable agreement does not exist between them and StockX, thereby, making arbitration an improper forum.

The Sixth Circuit’s Decision

In its decision dated December 2, a panel of judges for the Sixth Circuit declined to rule on any of the plaintiffs’ arguments about the validity or enforceability of StockX’s terms. Writing for the court, Judge Ralph Guy stated, “[W]e conclude that a contract exists and that the delegation provision itself” – which states that “the arbitrator . . . shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability or formation of [the arbitration] agreement to arbitrate, any part of it, or of [StockX’s] terms [of service] including, . . . any claim that all or any part of [the arbitration] agreement or the terms is void or voidable” – is valid.

“Such language alone is clear and unmistakable evidence requiring that an arbitrator shall decide the ‘applicability, enforceability,’ or validity of both the arbitration provision and the entire contract,” according to Judge Guy, holding that as a result, “the arbitrator must decide in the first instance whether the defenses of infancy and unconscionability allow plaintiffs to avoid arbitrating the merits of their claims.”

As for the plaintiffs’ challenge of the delegation clause, itself, the court held that they have failed to show that “‘the basis of [their] challenge [is] directed specifically’ to the ‘delegation provision,” as they “have simply recycled the same arguments that pertain to the enforceability of the agreement as a whole.” As a result, the majority determined that the plaintiffs’ challenge to the validity or enforceability of the delegation clause under the infancy defense “is for an arbitrator to decide.” (Judge Karen Nelson Moore dissented, arguing that “a minor who has disaffirmed a contract is not subject to the contract’s delegation provision, [as] arbitration is simply a matter of contract between the parties.”)

With this in mind, the Sixth Circuit upheld the lower court’s decision to dismiss the case and compel arbitration.

The win for StockX is the latest in a sting of cases that “strictly enforce delegation provisions,” according to Squire Patton Boggs LLP’s Ellen Phillips, who points to Swiger v. Rosette, in which a plaintiff sought to avoid arbitration in a case over an allegedly “predatory loan” contract that contained a delegation clause, but “was unable to do so when she failed to mention, let alone challenge, her contract’s delegation clause.” In March, the Sixth Circuit sided with the defendant, holding that “because Swiger’s arbitration agreement includes an unchallenged provision delegating [the] question [of whether the parties must arbitrate their dispute over the loan] to an arbitrator, the district court exceeded its authority when it undertook that task and found the agreement unenforceable.”  

“If one wants a court to determine whether an arbitration agreement is enforceable, they must check if there is a delegation clause, and, if so, specifically challenge it,” Phillips states. “Otherwise, they will be left arbitrating whether they should be arbitrating.” 

Esquer v. StockX

While the consolidated case will now move to arbitration, one of the cases filed against StockX in connection with the breach was previously determined to not be subject to dismissal on the basis of arbitration. In an order dated June 15, Eastern District of Michigan Judge Victoria Roberts determined that “because application of Michigan law would be contrary to fundamental California policy and California has a materially greater interest in Esquer’s claims than Michigan, StockX’s choice of law clause is unenforceable, [and] the Court will not compel arbitration of Esquer’s claims against StockX.”

In the complaint that she first filed before the U.S. District Court for the Northern District of California in September 2019, Esquer accused StockX of running afoul of California’s Consumer Records Act and Unfair Competition Law by “fail[ing] to secure and safeguard its customers’ private information, including the names, shipping addresses, email addresses, and passwords of those who created accounts on the StockX website.” Esquer argued that StockX “knew, or should have known, that its data security measures were inadequate,” particularly since the data breach “followed prominent breaches involving other e-commerce websites such as shein.com, panerabread.com, adidas.com, orbitz.com, macys.com, bloomingsdales.com, and zappos.com.”

StockX, which revealed that it surpassed 6.5 million lifetime buyers and 1 million lifetime sellers in the first half of 2021, has been building out its initially sneaker-focused offerings since its founding in 2016 and expanding internationally. In the wake of its latest funding round, a Series E-1 round that closed in April 2021, the company boasts a valuation of $3.8 billion. 

The case is In Re: StockX Customer Data Security Breach Litigation, No. 21-1089 (6th Cir.).

Off-White appeared to be preparing for a push further into the market by way of a range of new products. A handful of trademark applications for registration – filed on an intent to use basis – suggest that the late Virgil Abloh’s brand is looking to venture into cosmetics (from toners and serums to nail polish), homewares, which will follow from its 2019 collaboration with IKEA, and stationary, among other things. If a slew of trademark applications is any indication, those products are slated to be branded with the company’s various marks, which range from its Off-White word mark and well-known arrows motif to the more recently-revealed face graphic and the not-yet-in-use Paperwork word mark. 

In addition to using “the power of art to inspire” – and include – “future generations,” as well as groups that have been traditionally underrepresented in fashion, as the New York Times put it this weekend, Mr. Abloh – who died on Sunday at age 41 from a rare form of cancer – was famous for dealing in “irony, reference, and the self-aware wink to re-contextualize the familiar and give it an aura of cultural currency.” At least part of that exercise was grounded in how he approached the idea of branding. Since some of Abloh’s many noteworthy offerings come in the form of his almost-10-year-old company’s ubiquitous logos, a look at a few of Abloh’s most striking takes on source-identifying symbols seems an appropriate way to reflect on the work of the design visionary.

The Diagonal Lines 

One of the most instantly recognizable elements of the Off-White brand is its signature diagonal stripes, which have adorned the sleeves of Off-White sweatshirts and the backs of t-shirts from the outset, and have since appeared on the exterior of “it” bags and peek out of the lapel of oversized fox fur coats. At the same time, it is, of course, the graphic that you find on cross-walks and on road signs – and have found there for many decades now, long before Off-White’s inception. As TFL first noted back in 2016, as a brand builder, Abloh did something very interesting when he adopted a series of black and white diagonal lines as his brand’s logo. Instead of utilizing an immediately brand-identifying mark, which is what most brands set out to do in order to give themselves a leg-up in the distinctiveness vein, Abloh chose one that was completely unoriginal. 

In doing so, he enabled his brand to immediately benefit from an already-established icon. 

Writer Cameron Wolf put it well back in 2016, stating that “even if the general population doesn’t recognize those diagonal stripes as Abloh’s,” his followers do – not only when they are used on garments and apparel but also potentially, when they are used to alert drivers on the road and pedestrians on the street. While Off-White exclusively maintains trademark rights in (and registrations for) the goods/services it uses the stripes motif on (think: apparel, accessories, footwear, furniture, retail store services, etc.), it has also enjoyed extra-legal benefits from being all over the map. “Imagine hundreds of thousands of Off-White fans seeing diagonal lines all the time and automatically thinking of Abloh’s label,” Wolf stated. “That’s extremely powerful because it can make the brand seem larger than it actually is.” 

The upsides of the ubiquitous logo arguably have not worn wear off once the brand reached bona fide “hottest brand” status, as it did for many quarters in recent years, according to Lyst’s quarterly ranking of fashion’s hottest brands and products. In fact, the multi-lined pattern has likely served to reinforce the brand in the minds of in-the-know consumers.  

Off-White Quotation Marks & Zip Ties

The various iterations of the diagonal stripe motif – including marks that contain 15 and 19 stripes – may be some of Off-White’s earliest and most famous trademarks, but they are not the only intriguing indicators of source that have come from the mind of Mr. Abloh. In fact, unlike many fashion/luxury brands, which tend to adopt a relatively small number of (more) straightforward marks and use them for decades (or longer), Off-White company has been known to make use of a number of different trademarks that serve as both culture commentary and source-identifying elements. Under Abloh’s watch, Off-White somewhat consistently inserted new logos (and plays on existing logos) into the mix as part of a larger – and consistent – evolution of the brand and potentially, as a way to avoid the potential onset of logo or brand fatigue, particularly given Abloh’s penchant for leaving his mark across a slew of branded and co-branded products across an array of industries. To put his collaborative efforts into perspective, his partners ranged from Nike and Rimowa to Evian and Mercedes-Benz.

Another mark that immediately comes to mind is the quotation marks, which flank an eye-watering variety of words in the Off-White ecosystem. Among them are, of course, “Product Bag” and “For Walking,” for which Off-White filed trademark applications for registration in 2019 and 2020 for use on “Tops as clothing; bottoms as clothing,” and footwear, respectively. In connection with those applications, which are still pending before the U.S. Patent and Trademark Office (“USPTO”) and have been subject to repeated pushback, including on descriptiveness grounds, counsel for Off-White has argued that the inclusion of the quotation marks changes “the very essence of the phrases [that appear in the quotations] by altering the way [they are] pronounced, what [they are] perceived to mean, and how [they are] understood by consumers.” 

Specifically, the quotation marks “add a layer of meaning to the phrase,” the brand’s counsel has asserted in the past, claiming that “the overall effect of the quotation marks in [Off-White’s] trademarks is to transform the words used and create a unique, source-identifying commercial impression in the minds of consumers.” Ultimately, the marks are “elevated beyond being descriptive” – of shoes or product packaging – “due to the unique commercial impression created by [Off-White’s] distinct use of quotation marks,” which Off-White has claimed is different from “mere use of the word or phrase without the quotation marks.” 

The USPTO has agreed, to some extent, issuing a notice of allowance for the “Product Bag” mark back in December 2020. The trademark office is now waiting for Off-White to file a statement of use to show that it is using the mark in commerce. 

And not to be overlooked is the equally noteworthy red zip tie mark, which Off-White has used across footwear and other accessories since 2016, according to the application for registration that it filed for the mark – which consists of “a zip tie with a substantially rectangular end, all in the color red as used [in a specific position] on footwear” – in 2018. The zip tie is undoubtedly widely recognized by relevant consumers as being attached to products coming from Off-White, an association that has been helped along by years of use and widespread adoption off zip tie-affixed wares (namely, sneakers) by no shortage of mega-stars. Yet, the application has faced recurring pushback from the USPTO, an examining attorney for which has argued that, among other things, the zip tie does not function as a trademark because it is an unprotectable decorative feature of the Off-White’s products that drives consumers to purchase those products. 

Counsel for Off-White has made an array of interesting arguments in favor of the mark’s registration, asserting that the red zip tie is such a significant indicator of source in the minds of consumers that “when consumers see [the red zip tie] affixed to [Off-White’s] goods, they immediately understand the product to have originated with [Off-White].” Need proof of that? It is demonstrated by the fact that “many consumers who purchase [Off-White products] choose to leave [the zip tie] affixed to the outside of the product, even though it could be easily removed.” 

Beyond that, Off-White has taken issue with the USPTO examiner’s claim that the zip tie does not function as a trademark because it is an unprotectable decorative feature of the Off-White’s products that drives consumers to purchase those products. Disagreeing with the examiner’s assertion that “if consumers are purchasing a product because of the presence of [Off-White’s] mark [on that product], that makes it a decorative feature,” Off-White likens the zip tie to the logo-centric products of luxury goods brands, sales of which are driven, in large part, by the presence of the logos. 

Trademarks for a New Demo

Finally, in what I think is a compelling and convincing argument, counsel for Off-White has argued that the zip tie is not really any different from “any other trademark that appears affixed to fashion products,” which often attract consumers to the product while also identifying the source of it. This is especially true for high-end fashion products “for which the communication to others that the product is produced by a certain source is much of the attraction of purchasing, owning, and wearing the product in the first place,” Off-White asserts. 

In other words, consumers very well may buy a bag or belt or pair of shoes because of the trademark(s) that appear on those goods (and in fact, as I have argued at length in the past, they probably do buy them for that very reason). That does not, however, necessarily mean that the logos or brand names or patterns, etc. do not act as indicators of source of the goods; after all, a mark can be both decorative and source-indicating at the same time. In fact, counsel for Off-White has argued that when consumers are attracted to – and ultimately purchase – a product because of the trademark(s) that appear on it, this is almost certainly because of the “specific source-identifying properties of” those marks. 

Ultimately, Off-White’s approach to trademarks falls neatly in line with what big brands have done for decades with their own marks, namely, word marks, logos, and monograms. Instead of selling luxury products, themselves, most established brands are more realistically trading on intellectual property rights, namely, trademarks and the significance of those marks to the consuming public (i.e., the goodwill that exists in those marks). This is more-or-less what Off-White is doing, as well. However, instead of relying exclusively on conventional word marks and logos (it does use and have registrations for those), Abloh took the notion of what has traditionally acted as a source-indicator and flipped it on its head in order to cater successfully to a new generation of consumers. 

Chances are, the USPTO (and other trademark offices) will eventually recognize that. And even if it does not, Abloh’s approach to branding is, nonetheless, a case study in what brands should aspire to, even if few are as creative or forward-thinking as Abloh was.