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  • 5 - Non-traditional Trademarks, Distinctiveness and the Fashion Industry

  • from Part II - Intellectual Property Rights: Copyright, Trademarks, Patents and Registered Designs
  • Edited by David Tan, National University of Singapore, Jeanne Fromer, New York University, Dev Gangjee, University of Oxford
  • Book:
    Fashion and Intellectual Property
    Published online:
    27 October 2025
    Print publication:
    13 November 2025, pp 133-159
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  • Summary

    This chapter analyses the use of non-traditional trademarks (NTTMs) in the fashion industry. With reference to selected cases in the United States, the European Union and Singapore, the authors study the arguments for and against the protection of these signs as trademarks, as well as the appropriate test for the evaluation of distinctiveness. Although some fashion designers and enterprises have celebrated victories in court, it has been widely noted that the registration and protection of these NTTMs can be problematic and potentially detrimental to innovation in the fashion industry. The authors also critically examine the different tests of ‘association’ and ‘reliance’ as discussed in recent court decisions on acquired distinctiveness of NTTMs and conclude with a recommendation that the ‘reliance’ test is the preferred test.