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Macy’s is tapping Kylie Jenner’s Kylie Cosmetics as part of a potentially long-running deal aimed at bringing the buzzy cosmetics brand into even more brick-and-mortar stores. In an announcement on Tuesday, the New York-headquartered retailer revealed that it will roll out “a limited-edition Holiday Collection” with Kylie Cosmetics beginning on October 1, followed by “additional core products launching this winter and the full collection coming to stores and online in early Spring 2023.” Reflecting on the tie-up with the “beauty powerhouse” that is Kylie Cosmetics, Macy’s VP of Beauty Merchandising Nicolette Bosco said it comes as Macy’s “expand[s] our ever-growing portfolio of beauty lines” in furtherance of an aim to “connect our customers to brands that celebrate their own personal style.” 

The news of the parties’ venture – which will help Macy’s to get consumers into its stores and on to its e-commerce site – comes as retailers are feeling notable pressure ahead of the important 2022 holiday season, during which time U.S. retail sales (excluding automotive) are expected to increase 7.1 percent year-over-year, according to the Mastercard SpendingPulse annual holiday forecast. Despite such projected increases, this year, companies will be forced to grapple with the impact of inflation, which is slated to muddy the waters, as consumers “search for deals [and/or] make trade-offs that allow for extra room in their gift-giving budgets,” Michelle Meyer, U.S. Chief Economist at the Mastercard Economics Institute, says. 

The Macy’s, Kylie deal puts into practice many of the key themes that are expected to dominate retailers’ practices during the 2022 holiday season, from extended holiday shopping timelines to the rise of new collaborations aimed at getting consumers to shop in-store. “With holiday shopping slated to begin early again this year,” Mastercard expects “some of the season’s retail growth to be pulled forward in October as consumers hunt for early deals.” Key promotional days, such as Black Friday weekend are also likely to make “a strong return along with Christmas Eve, which falls on a Saturday, slated to be among the biggest days for retailers and last-minute shoppers,” the company states. 

At the same time, brands and retailers, alike, are expected to roll out in-store experiences to draw shoppers into stores. “From the return of holiday doorbusters to new brick-and-mortar collaborations,” companies are angling to drive shopping in-store, where consumers tend to spend larger sums per transaction and where the rate of returns is significantly low. Against this background, Mastercard’s forecast sees in-store retail sales rising by 7.9 percent year-over-year and up 10.4 percent from pre-pandemic 2019 levels. “While e-commerce has seen marked growth in recent years,” its data shows that “in-store spending made up more than 4/5 of retail sales from January through August 2022.” 

Looking beyond trends that are not as easily discernible in the Kylie and Macy’s partnership, Mastercard estimates that apparel sales, for instance, are likely to increase this holiday season, with consumers adding “revamped wardrobes to their wish lists as social events and platforms” have resumed post-pandemic. Apparel sales are estimated to rise by 4.6 percent year-over-year and 25.3 percent compared to 25.3 percent from 2019. Meanwhile, luxury goods are expected to be “hot holiday gift sectors,” with sales increasing 4.4 percent year-over-year and 29.6 percent from 2019. 

And still yet, bargain hunting is expected to be in full force this holiday season – and leading up to the season, as retailers plan to implement “steep markdowns to clear shelves ahead of the holiday season,” according to the Financial Times. “I hesitate to call it a bloodbath,” Urban Outfitters CEO Richard Hayne asserted during the group’s Q2 earnings call last month. Nonetheless, “It’s going to be ugly in terms of the amount of discounting and markdowns,” he said, noting, “We think there’s too much inventory across the board.” 

“From deals and discounts to price monitoring and price matching, consumers are looking to stretch their dollars and get the most bang for their buck,” Mastercard contends. “E-commerce is anticipated to increase despite significant growth last year, up 4.2 percent year-over-year and 69.2 percent from 2019,” in a nod to consumers’ concern over price. After all, Mastercard states that “the channel remains a convenient way for consumers to check prices in real time.” 

Burberry announced a new venture this week, one that will see it tackle a sweeping issue faced by apparel companies: deadstock fabrics. Two years after it vowed to stop destroying millions of dollars’ worth of unsold products, including beauty products and ready-to-wear, the Riccardo Tisci-helmed brand has unveiled the ReBurberry Fabric Initiative, in furtherance of which it will team up with the British Fashion Council (“BFC”) to donate leftover fabrics to fashion students in the United Kingdom. 

A sizable roadblock in the industry’s quest to clean up its act, deadstock fabrics consist of “leftover textiles with no plan for future use.” From excess materials from the creation of garments to “rejected fabrics that are unable to be sold due to minor defects or design changes,” London-based supply chain platform Supply Compass clams that “$120 billion a year of unused material is thrown into landfills, burned or [left to pile up] in warehouses.” 

By way of its new initiative, Burberry is planning to put its leftover materials to good use to support “the next generation of diverse voices across the country,” the stalwart fashion brand stated this week, with Pam Betty, Burberry’s VP of Corporate Responsibility, saying that “providing resources for these communities in a sustainable way will enable them to bring their creativity to life, and continue through their programs with the tools they need.”

At the same time, the BFC’s chief executive Caroline Rush says that one of the primary goals of the initiative as a whole – which the fashion trade group hopes to roll out to all British brands following its pilot with Burberry – is to “to move toward a circular fashion economy while supporting excellence in fashion design.”

A Larger Industry Effort

Burberry’s newly-announced ReBurberry Fabric Initiative is part of a larger effort by the fashion industry to remedy the pollution-inducing and the largely unsustainable nature of the high-volume, novelty-based system that is seasonal fashion. It mirrors some of the practices in place by a number of other brands, such as Alexander McQueen, which are in the habit of donating unused fabrics. Meanwhile, labels like Christy Dawn, Bode, and Christopher Raeburn are manufacture collections from deadstock fabrics. At the same time, it also comes amid pushes for legislation to tackle the rising amount of waste in industries across the board, with the French government, for example, announcing last year that it would enact legislation to “ensure that unsold materials” – including in the fashion sector – “are not thrown away or destroyed” but are recycled or reused instead. 

Thanks to the sweeping new legislation, called “Projet de loi relatif à la lutte contre le gaspillage et à l’économie circulaire.” or Bill on the fight against waste and the circular economy, French companies are slated to be subject to more than 100 new sustainability-centric provisions. These will require the systematic phasing out of automatic paper receipts and single use plastic in fast food restaurants, for instance; followed by the outright ban on all single-use plastics by 2040. 

Of particular interest for the fashion industry is, of course, the prohibition on the destruction of an array of different types of unsold goods, including garments and accessories. To be exact, the law – which was formally approved by the French Sénat on January 30, 2020 – aims to require “producers, importers and distributors, including e-commerce platforms donate unsold non-food goods, save for those that pose a health or safety risk.” 

The fashion industry is a particular target of the new legislation, as “apparel retailers, in particular, as they renew their products more frequently [than other industries] and often have surplus unsold stock,” according to French legislators. 

As we first noted in June 2019, there is expected to be potential exception to the ban on throwing away or destroying garments and accessories that have not been sold. While the French government will not elaborate, it has been reported by French media that there will be “concessions” made in connection with the budding legislation for high-fashion brands aimed at enabling them protect their intellectual property rights

This could mean luxury brands will be permitted to continue to destroy counterfeit or otherwise infringing products that come into their possession, which is generally in line with standard practices across the globe. In this context, however, such a concession may more likely enable companies to destroy authentic products from which their intellectual property – such as their trademarks, which include any word, name, symbol, or design (including logos, colors, sounds, product configurations, etc.), or any combination thereof that identifies the goods of one brand and distinguish them from another – cannot readily be removed.

This would allow luxury goods companies, in particular, to ensure that their trademark rights – and maybe even copyright and design patent-protected elements – remain intact in furtherance of their oft-aggressive quests to police their intellectual property and exercise the ability to carefully control their supply chains (and keep products out of the grey market) in order to maintain the aura of exclusivity and quality that is integral to their premium pricing, and more broadly, their sales success.

Unsurprisingly, the same controls appear to be in play in connection with Burberry’s newly-announced ReBurberry Fabric Initiative, and presumably, the post-pilot program as a whole. Specifically addressing the types of textiles will – or better yet, will not– be passed off to students, fashion critic Charlie Porter notes in an article for i-D that “crucially, the fabric is all non-IP, meaning that there is nothing to identify it as Burberry cloth: no checks, no logo,” and certainly, no word marks. 

As Porter puts it, this “means the students receiving the fabric won’t be making an identifiably Burberry garment, they’ll be making their own garment.” It also means that brands will likely be far more in favor of donating unsold textiles. 

With such brand protection and control concepts in mind, the ability of brands to strictly limit the use of trademark-bearing textiles by third-parties is critical to the success of such legislation, as France seems to well know (potentially as a result of lobby efforts by the French fashion industry), as well as to the prospects for widespread support for voluntary deadstock initiatives, such as the one being pioneered by Burberry and the BFC.

Inside some 600 J.C. Penney outposts across the United States, you will find mini Sephora stores flanked with the brand’s signature black-and-white striped decor and packed with beauty products, ranging from Rihanna’s Fenty Beauty foundations to Drunk Elephant’s lineup of skincare serums and hydrating face masks. For over a decade, the two companies have engaged in such a “stores-within-a-store” deal, in connection with which the LVMH Moët Hennessy Louis Vuitton-owned beauty retailer offers products from more than 200 beauty brands, including its own collection of products, and serves as J.C. Penney (“JCP”)’s “exclusive source of beauty offerings within [its] stores.” 

Shedding light on the partnership in a since-settled case that it filed this spring, JCP asserted that it entered into the shop-in-shop deal back in 2006 for the “benefit both of the parties.” Sephora, which maintained less than 200 of its own brick-and-mortar outposts at the time, would expand its physical footprint (and its reach to cosmetics-seeking consumers) without having to roll out sweeping, standalone stores. At the same time, JCP – in line with what other department stores had been doing for years – would be able to provide added value for its in-store shoppers, differentiate its offerings from competitors, and ideally, boost foot traffic.  

While the parties’ partnership thrived for more than a decade, it appeared to be on the rocks as of April when JCP – just days before its Chapter 11 bankruptcy filing – initiated a contract-centric lawsuit against Sephora, alleging that the beauty retailer had threatened to terminate the parties’ 14-year-running deal. In the midst of the COVID pandemic, JCP told a federal court in Texas on April 27 that Sephora had warned that it would walk away from the deal immediately unless JCP offered it more favorable terms. 

It appeared as though Sephora may have been looking for an out of its contract, which is not slated to expire until early 2023, amid financial turmoil for JCP and more maybe more significantly, large-scale shifts in the retail landscape, as COVID was busy accelerating an already-existing movement away from brick-and-mortar shopping and towards increased e-commerce consumption. 

The parties ultimately managed to settle their differences in a timely manner, stating in a joint announcement on May 7, less than two weeks after JCP filed suit, that they had “reaffirmed their long-standing partnership to operate Sephora inside JCPenney.” They stated that “both companies worked constructively to resolve outstanding legal matters and have agreed to mutually beneficial revisions to their joint enterprise operating agreement.” 

A Growing List of Deals

Among those revisions: a likely lifting of any exclusivity clauses that may have previously prevented the parties from engaging in similar partnerships with third parties, as Sephora has since announced that it will embark on another deal, one that will see it open 850 shops in Kohl’s stores across the U.S. The new tie-up – in connection with which Sephora will bring more than 100 “carefully curated beauty brands” to the 65 million Kohl’s customers in the U.S. – “is an excellent example of two customer-centric, purpose-driven companies leveraging each other’s strengths to make aspirational beauty far more accessible to millions of customers all across the country,” Kohl’s CEO Michelle Gass said in a statement on December 1. 

At the same time, Jean-André Rougeot, president and chief executive officer of Sephora Americas, spoke out about the newly-announced venture, saying, “This is not a pop-up collaboration, but an investment our brand partners can rely on for the long-term.” (Such a focus on an enduring partnership with Kohl’s might suggest that come 2023, Sephora very well may not seek to renew its deal with JCP, or at the very least, is leaving its options open as the pandemic continues to play out and impact retailers on differing bases).

Interestingly, Sephora is not the only one doubling-down on a shop-in-shop strategy; the Sephora x Kohl’s news follows just weeks from Ulta and Target revealing a partnership of their own. Sephora’s beauty rival and the Minneapolis-headquartered big-box retailer announced on November 10 that Ulta will open makeup and skincare shops inside of “hundreds of” Target stores, with a roll out starting in the second half of 2021. According to CNBC, “Each ‘shop-in-shop’ will be about 1,000 square feet with more than 40 beauty brands and a rotating assortment of products from hair care and fragrances to lip gloss.” 

Target CEO Brian Cornell and Ulta CEO Mary Dillon told CNBC that “they see the strategic partnership as a long-term deal that will catch customers’ attention and drive higher sales,” with Target standing to gain “a unique traffic driver in a fast-growing merchandise category, while Ulta will gain visibility on [Target’s] store shelves and website, [which] has expanded its reach during the pandemic.” 

In addition to seeking to build on pandemic-centric momentum primarily for e-commerce, both partnerships appear to be anticipating a post-pandemic return to stores, which will require brands and retailers to “facilitate better retail experiences,” according to Gentler consultant Michael Gatti, whether that be through “engaging and creative in-store experiences” or the introduction of an expanded range of products, such as a revolving roster of buzzy new beauty brands, something that Target has been increasingly working on in recent years. 

As for Target, in particular, Cornell said the deal with Ulta aims to “build on momentum we have in the category and investments we’ve been making for years in beauty,” which he calls “a very important category [that] we continue to believe [is] going to be a high-growth category.”

Contract Considerations

Looking beyond the potential easing of exclusivity restrictions that may have previously existed between Sephora and JCP, these new tie-ups with mass-market retailers present some additional – and interesting – contract considerations of their own. Namely, there are potential issues when it comes to luxury brands and other high-end cosmetics companies that currently stock with the likes of Sephora and Ulta, and the extent to which their ongoing agreements with these retailers permit – or maybe more likely, limit – the stocking of their products by otherwise unauthorized third-parties, such as Target and Kohl’s.

While Kohl’s, for instance, currently boasts a lineup of fragrances from Burberry, Gucci, Versace, and Dolce & Gabbana, among those of other high-end brands (something Target largely lacks), both retailers’ product lineups are almost entirely devoid of luxury beauty/cosmetics offerings, such as those from big names like Tom Ford, Chanel, and Dior, as well as upscale beauty brands La Mer, SK-II, and Dr. Barbara Sturm, etc., all of which are currently being offered up in Sephora’s own stores and its e-commerce site. Similarly, Ulta boasts a long list of premium brand partners, including Dermalogica, which has taken issue with – and (since-resolved) legal action against – Target’s sale of alleged “gray market” versions of its goods in its brick-and-mortar stores in lieu of an authorized distribution agreement.

With the foregoing in mind, and given the notoriously controlling and image-conscious nature of certain luxury brands, which inevitably takes the form of iron-clad contractual clauses regarding distribution, chances are, at least some companies will point to applicable restrictions in their contracts with Sephora and/or Ulta to push back against having their goods put on the shelves of their new big-box retail chain partners. In short: Chanel fragrances will not be available for purchase at an Ulta shop-in-shop at Target anytime soon, just as Dr. Sturm’s face cream will almost certainly not be coming to Kohl’s by way of Sephora.

The potential inclusion of specific distribution provisions – either at the outset or as a result of further negotiations – is not light-years away from how at least some savvy certain luxury brands have tacked on provisions to their contracts with their stockists to ensure that in the case of bankruptcy and/or liquidation, for instance, their wares are not subject to across-the-board price-slashing. A source for TFL revealed that LVMH reached such an agreement with Barneys New York, which it negotiated with the retailer at the time that its bankruptcy was announced in August 2019 in order to ensure that its brands, including Givenchy and Celine, would not be marked down as part of the retailer’s liquidation.

In light of such proliferating shop-in-shop partnerships (both in the beauty space and beyond), brands are encouraged to carefully consider the terms of their contracts with authorized stockists, including by anticipating situations such as these, particularly as control continues to play a key role when it comes to brands and their positioning.

After a long, competitive decade, luxury goods and services brands, as well as their agencies and consultants have finally mastered the rules of the digital marketing game; just in time for the game to change. Pandemics inspire reality checks of major proportions. The reality is that for years, luxury goods and services brands have been playing a digital marketing game that serves the best interests of digital tech platforms and their proxies while failing to observe the privacy and best economic interests of their customers, society, and shareholders.

As demonstrated by the economics of dismally low ad-click and conversion rates, especially on mobile devices, digital advertising is a broken business model. Empirical research shows that digital ads inspire clicks from a majority of customers that would have purchased anyway. Digital advertising is rife with obsolete data, mistargeted messages, accidental clicks, deceptive metrics, bias, fraud, mistrust, privacy violations, consumer frustration, and growing ad blocking. The model is hugely profitable for the intermediaries, but fails economically for the two supposed beneficiaries: luxury brands and their valued consumers.

When luxury executives in the 2030s look back at the post-pandemic 2020s, the most flawed assumption in business in the pandemic year of 2020 will have been that individual personal data would always be coerced, owned, and controlled by the ad platforms and third-party brokers, instead of those who produce it: individuals. Future luxury marketers will wonder why brands and their advisors opted for superficial, unprofitable customer relationships. Brands are stuck in the myth that the current coerced data extraction method of digital advertising is the most effective way to generate value in the digital economy. Post-pandemic, digital leaders will adopt legal, consent-based, privileged access methods that yield rightful personal data control to customers in order to empower and accelerate relevant, rich, and real-time sharing.

In the post-pandemic personal data economy, a brand’s privileged access to relevant, rich, and real-time customer data will be the major driver of economic and competitive advantage. As customers are empowered by legislation, and a rapidly growing community of ethical, innovative entrepreneurs and trusted intermediary services to take full control of their personal data, they will be selective about sharing. There will be winners and losers in each category. Smart brands need to develop the optimal customer data strategic plan and operating model now in order to take advantage of the opportunity.

For almost three years, the Luxury Institute has been researching, investing, and building critical relationships and deep expertise in the emerging personal data economy. The Institute has designed a framework for planning and executing in the new era of Advanced Personalization. Here is its 10-step process for developing a strategy to kick-start the ethical, client-centric, advanced personalization process … 

Step 1: Identify the most valuable customer data  

To start the process, a brand will assemble and empower a multi-functional team of trusted internal and external experts. Their task is to dissect the current customer journey and brainstorm the top opportunities for advanced personalization. The team must determine what privileged personal data is required, how often it is needed, and where it will reside  in order to enable the first experiments. Start very simple and evolve. Some required personal data will be historical, some will be real-time. Depending on the category, required data can include historical category purchase and behavioral data, and/or real-time browser and location data.
             
Step 2: Install the legal and ethical framework for data sharing

Once the opportunities and the relevant data have been identified, a legal team must work with the customer-facing team to establish the legal framework.  It must meet the optimal legal requirements, and also go above and beyond the law to protect the consent, flow and storage of personal data and insights. Cybersecurity, privacy and seamless data access consent protocols must be put in place. Because it is a legal process, some brands get intimidated, but being legal, ethical, and serving the interests of customers is not complicated. It is super-simple for trustworthy brands.

Step 3: Establish the technology framework for data sharing

The most important requirements in the technology framework are the data sourcing, frequency of sourcing, data transfer facilitation, and data/insight storage and access technologies. The right data may need to flow by consent from the customer’s device to the servers of the brand. Or, the data may remain in the customer’s devices and be accessed by consent through on-device AI/edge computing, which is secure and preserves privacy, saves on costs, and will likely become the norm in AI. Both methods may be appropriate at different times. Surprisingly for many, all the required technology to execute this process already exists. It can be configured easily to create a seamless process.

Step 4: Power up the analytical AI engine 

The new analytical process is a continuous virtuous cycle of gathering and structuring data, using simple machine learning techniques plus expert human judgment, to identify actionable, timely insights and value-generating opportunities. The cost of using algorithms to make millions of rapid predictions and recommendations in real time at any company is plummeting to near zero. AI is now a low-cost prediction engine. That is why it is being applied everywhere. Besides talent, it is critical to remember that the right customer data is the most precious resource in the AI process.

Step 5: Turbo-charge the continuous customer value innovation platform  

The customer value innovation platform for each brand is comprised of asking the most powerful questions followed by using the right training data, generating insights, recommendations, decisions, and using the critical feedback data to adapt and innovate. The brand uses these to engage the customer in rapid testing and learning to determine what works for the customer, and what does not, quickly. Because the brand now has privileged access to relevant, rich, and real-time data from so many customers, it can use the generalized cohort learnings and insights to enhance the individual experience of each with far greater precision and accuracy than ever before. This innovation platform scales fast and delivers mutual cost efficiencies and value over time.

Step 6:  Implement a new customer communication strategy

Actionable insights and recommendations developed during the analytical phase must be humanized and delivered with the essential emotional intelligence pillars of expertise, deep empathy, trustworthiness and generosity. These make associates and customers feel cared for, and special. The brand team and each customer determine together what part of the journey is best automated, and what part of the journey is best delivered with rich human engagement. Customers can choose their favorite journey elements, and exceptions, in real-time. This is an omni-personal experience that transcends channels.

Step 7: Pilot testing and learning experiments

Once steps 1-6 merge into a smooth workflow, usually within 3-4 months, the brand can begin to experiment live. The brand can invite real customers to participate, and compensate and reward them, or select internal team members who fit the roles to be test participants. This allows the brand to start executing the steps of the process and identify experiences that need to be enhanced. The feedback, adjustments, and course-corrections will be valuable in optimizing the scale-up process.

Step 8: Reorganize teams for advanced personalization

One of the most important learning opportunities that brands will enable through testing the advanced personalization process is how to organize team members to collaborate to best serve the customer. Departmental silos may no longer work. Customer segment leaders may emerge to refocus the brand from products and channels into a customer-centric business model. The agility of the teams to stay open to learning and innovation and remain agile in the moment must be established as the norm.

Step 9: Scale up and measure what works 

As soon as the brand has established that customers are receiving highly personalized value, the brand can scale up advanced personalization in an efficient and effective evolutionary process throughout the enterprise. This is an endless journey of rich, open dialogue and continuous learning, continuous improvement, and rapid-fire innovation. Key metrics such as customer acquisition, retention, and referrals will be used, but those are merely outcomes. Entirely new input metrics will emerge as the brand abandons irrelevant Industrial Age measures of performance. For example, measures of customer trust, levels of access to the most relevant data,  algorithm prediction effectiveness and individual personalization accuracy will be used. New individualized measures of customer relationship length, depth and loyalty will replace the surface-level customer satisfaction metrics of today.

Step 10: Innovate an iterative test

The most exciting aspect of ethical personal data sharing is that the acceleration of the flow of quality and quantity of the right personal data uniquely delivers economies of scale (cost efficiencies), and economies of scope (higher share of customer spend). It can unleash unimagined levels of prediction and creativity with major cost reductions and profitability. To get these benefits, however, brands must create a culture of socially responsible, fiduciary purpose, where they transparently protect, enhance, and promote the best interests of  customers, associates and society continuously. It’s an ethical journey of innovation.

Surveillance capitalism is so 2010s. It is not just untrustworthy, it is economically unworthy. In America and Europe, 2020s consumers will be empowered by legislation and rapid innovation to assert full control over their individual data. Ethical brands will embrace this because it dramatically lowers their cost and risk of holding high quality personal data while reducing waste and improving profit margins. There will be exponentially more, and richer personal data, that each human will produce post-pandemic. They will happily share this precious resource when they are guaranteed the best cybersecurity, strict privacy, and clear, relevant recommendations and rewards.

The more their complex lives require them to make high-risk, high-value, high-investment, and high-emotion purchases and decisions, the more luxury consumers will be open to entrusting privileged access to their personal data to brands that offer personalized best-in-class solutions.

Post-pandemic, luxury brands will need new ways to vastly improve performance. These advanced personalization techniques dramatically reduce the cost of acquiring relevant, rich, and real-time data, leverage the plummeting costs and ease of use of AI, reduce customer acquisition and retention costs, reduce supply chain and inventory costs, and increase conversion, retention, and referral rates. The ethical and economic use cases are compelling.

The only question now is which brand leaders will step up to meet the changes and embrace the low-cost, high-performance breakthrough journey from privileged access to advanced personalization?

The U.S. market for face masks is positively booming. Projected to reach $6 billion in 2021, according to investment bank KeyBanc Capital Markets, companies are placing their bets on demand for not only utilitarian face coverings but decorative, and even luxury-level ones, as the item of COVID-centric protective gear has swiftly evolved into a fashion ornament – albeit a mandatory one in most jurisdictions – and created a new category of accessory in the process, one that is being compared to the likes of “it” bags and the latest trend in coveted sneakers. 

Since the outset of the global health pandemic, the notion of logo-laden, designer face masks has become increasingly less taboo, and as the practical need to wear a mask endures, the attitude of many consumers has shifted. The result? A new emphasis on the fashion aspects of these necessary accessories in addition to the purely functional ones. “Face coverings might be a matter of practicality in the era of COVID-19,” the Los Angeles Times’ Lindzi Scharf wrote in September. “But for the 1 percent, fancy masks and shields have become a new opportunity to project individual status.”

“This kind of evolution is natural. It may be inevitable. It is the kind of human impulse fashion is built to serve,” the New York Times’ Vanessa Friedman asserted in April.

Against that background and in light of a drastic drop in sales of many of their other offerings, fashion brands – from burgeoning young upstarts to established names in the high fashion arena – have clamored to enter the face mask market to meet mounting consumer demand. 

And the demand is there. Etsy reported selling 24 million face masks in the September quarter, the Wall Street Journal recently reported. Meanwhile, data from Lyst shows that over the past three months, searches for designer face masks have surged by 33 percent. Lyst’s figures put Fendi’s FF logo pollution mask (currently sold out) at the top of the list of “the most wanted luxury-brand face masks,” with a representative for the fashion discovery platform telling TFL that between September and November, the $270 silk mask, with its “signature logo motif,” was generating over 1,000 daily searches. 

Outside of “high fashion category,” Lyst says that buzzy streetwear/fashion brand Off-White’s $105 diagonal face mask has been “the top-most wanted mask.” And elsewhere in the market, Louis Vuitton made headlines in September when it introduced a Toile monogram-trimmed face shield. The world’s largest luxury goods brand described the COVID-centric accessory as designed to be “both stylish and protective.” The reported cost of the Louis Vuitton shield? Upwards of $1,000.

image via Amazon

Not all masks come with a price tag as steep as Louis Vuitton’s face shield, and in fact, certain high-end fashion brands have adopted something of a different strategy, and are using face masks as a “new customer acquisition tool,” Adam Bluestein wrote for Marker in September. The likes of Burberry, which was one of the first luxury brands to launch a specific face mask collection this summer, Marni, and Dolce & Gabbana, among others, are essentially using masks in the same way that luxury brands have long-used more accessible, high margin-producing items, such as fragrances and eyewear, as “lower-priced entry-level items to attract people to the brand.”

As luxury brands rush to establish face masks as a distinct – revenue-driving – category of accessories, the race to file mask-specific trademark applications has already begun, with applications being lodged with national trademark offices across the globe as early as July, just a month after the World Health Organization published its guidelines suggesting laypeople wear fabric masks and leave the medical-grade masks to the frontline professionals who need them most. (Interestingly, most luxury brands do not already maintain registrations that extend to protective face masks or coverings).

Kering-owned company Yves Saint Laurent, for instance, filed two trademark applications with the U.S. Patent and Trademark Office (“USPTO”) for the goods/services in classes 9 and 10, for various types of “protective” and “respiratory masks.” The marks at play? A stylized version of its “Saint Laurent Paris” mark, as well as “Yves Saint Laurent” in the brand’s original (pre-Hedi Slimane) font. That same month, Burberry filed a U.S. application for the use of its name on “masks for medical use; sanitary masks for medical purposes; disposable sanitary masks; sanitary masks made of cloth; face protection shields for medical purposes.” 

More recently, in November, Louis Vuitton – whose various logos are regularly being slapped on masks and sold on digital marketplace sites – has filed a handful of applications for registration with the USPTO, seeking to register its name, interlocking “LV” logo, Damier Azur pattern, and Toile Monogram print for use on “protective face shields; protective masks; protective chin shields; [and] protective gloves” (class 9), and “face masks for medical use; Surgical masks; protective face shields for medical use; protective chin shields for medical use; [and] gloves for medical use” (class 10). 

image via Louis Vuitton

Brands’ attempts to add mask-centric registrations to their larger trademark arsenals are not limited to the U.S., of course. At the same time that Burberry filed its application with the USPTO, it filed applications in Australia, Singapore, and Spain for its use of its marks on masks. And not to be outdone on the trademark front, notoriously-aggressive-filer Off-White has been busy filing trademark applications that specifically extend to masks – and in some cases, hand sanitizers – in Mexico, Malaysia, and Singapore over the past few months. 

As for the impetus behind brands’ quests for registrations, the aim appears to be two-fold. Not only are companies looking to protect the use of their valuable brand names, logos, and in some cases, monogram prints, in connection with their use on face masks and other coverings, they are also presumably looking to up the ante when it comes to damages. With a trademark registration that covers masks in hand, brands will be able to not only bring trademark infringement cases of action, but counterfeiting claims, as well. 

The latter is particularly relevant, as a plethora of fake designer face masks in all the shapes, fabrics, and logos imaginable have inundated sites like Amazon and Etsy, and physical counterfeit havens like Canal Street in New York. All the while, U.S. Customs and Border Control officials have been intercepting incoming shipments of counterfeit trademark-bearing masks. In June, Customs revealed that it has seized more than 2,000 masks emblazoned with unauthorized designer logos – from Supreme to Chanel – at ports in New Orleans and Shreveport, Louisiana.

Unsurprisingly, as luxury masks continue to gain steam, even amid talks of vaccines, and thereby, further cement themselves and their new-found “it” status, many of the key concerns that routinely come with brands’ most in-demand offerings – namely, a rise in counterfeits – are in play here. Chances are, there are many more trademark filings in the works. 

*Ellie Sanders holds an M. Sc. from the London School of Economics, and is currently a J.D. candidate at New York Law School.