Evidence collection for trademark protection in special industries, such as "haute couture"
date: 2024-07-04 Ming Qi Read by:

In cases of attacking third party's trademark, we often need to collect evidence to prove that the cited trademark has acquired a certain reputation among the relevant public through usage. Today, the author would like to focus on the special industry, "haute couture" to discuss the issue of collecting evidence of trademarks in trademark cases.

Definition of "haute couture"

Haute Couture refers to the creation of exclusive fashions that is custom-made, handcrafted, and designed by renowned fashion houses. The production of a piece of haute couture clothing typically takes around 8 days, but can be extended to 40 days or more if intricate embellishments such as embroidery or jewel inlays are added. There are only about 1500-2000 haute couture clients globally, with only around 500 actually making purchases each year. Most clients come from royalty, nobility, government officials, and industry tycoons, etc.. As a result, haute couture is extremely expensive, and is often described as no price tag. In other words, haute couture is not something you can purchaseas you want and it is a symbol of social status.

In addition, haute couture is never self-proclaimed, but requires strict recognition and evaluation from La Chambre Syndicale del a Courture (French High Fashion Association). Currently, only one Chinese designer's clothing is recognized as haute couture by the association, which is Guo Pei. 

Evidence Collection for such special industry

Returning to the topic, since haute couture is not intended for the general public, what kind of use evidence can we provide to prove its reputation in cases of opposition and invalidation if the designer's name of an haute couture is being filed maliciously?

Before discussing the evidence, we should figure out the definition of relevant public, which has a crucial impact on the collection of evidence. The relevant public includes the following:

➢ Consumers of the goods or services indicated by the trademark;

➢ Producers of the goods or providers of the services indicated by the trademark;

➢ Operators and related personnel involved in the distribution channels of the goods or services indicated by the trademark.

As mentioned above, the consumers of "haute couture" are not the general public, but royalty, nobility, government officials, and industry tycoons, etc.. The producers of haute couture are top luxury brand owners, such as DIOR. The operators and related personnel involved in haute couture are also top fashion designers and studios. Therefore, in this context, the identification of the relevant public is crucial as it will further determine the types and quantity of evidence required to prove the use of the "haute couture" brand.

Generally, in the trademark dispute cases, the following types of evidence can be provided to prove the reputation of a trademark through usage:

1) Sales evidence: Contracts, invoices, delivery notes, bank statements, import and export documents, online sales records, etc. related to the goods or services bearing the trademark, etc.

2) Advertising evidence: Media advertisements, comments, reports, rankings, and other promotional activities related to the trademark;

3) Exhibition evidence: Materials related to the participation of the goods or services using the trademark in exhibitions or trade fairs;

4) Awards, records of trademark protection, and other evidence materials, etc.

In the collection of evidence regarding the reputation of trademarks for brands in fast-moving consumer goods and ordinary clothing, sales evidence is the most common type of evidence. The sales volume of these brands through offline stores and e-commerce platforms is very high, making sales evidence easy to collect.  The sales evidence is also the most powerful evidence to prove the reputation of a trademark. However, in the case of high-end fashion, such as haute couture, such sales evidence is rare. As mentioned above, haute couture involves complex processes and long production cycles, making mass production very difficult. Additionally, haute couture is extremely expensive, and the number of global haute couture customers is very limited, with a strong emphasis on customer privacy. In this scenario, providing the same amount of sales evidence as for common consumer goods is extremely challenging for brand owners. Therefore, in the collection of evidence in the case of haute couture, we need to pay more attention to below factors:

1. Detailed analysis of the uniqueness of the "hautecouture" industry to target the relevant public. As mentioned above, due to the uniqueness of the "haute couture" industry, the identification of its relevant public should not be ordinary consumers, producers, and operators of fast-moving consumer goods, but royalty, nobility, government officials, and industry tycoons, celebrities, top luxury brand owners, and etc.. In this section, we can analyze the historical origins, current status, production process, members, consumer levels, and other aspects of the "couture fashion" industry in detail to prove its uniqueness.

2. Based on the industry's uniqueness, in evidence collection, it is important to focus on publicity and brand exposure, rather than only on sales evidence as mentioned above. The evidence collection direction can include:

1) Fashion shows hosted by haute couturebrands.

Haute couture brands hold at least two fashion shows every year. We can collect information on clothing series, fashion show information, participating celebrities, etc.

2) Participation of haute couture brands in fashion shows such as Paris Fashion Week and celebrity's outfit.

3) Publication in top fashion magazines, including Vogue, Elle, Glamour, and other top fashion magazines.

4) Media report on the internet and social platforms, including Weibo, Xiaohongshu, Douyin, etc.

3. Awards received by haute couture brand designers, including the French ANDAM awards, British BFA award, French LVMH Prize, and other top fashion design awards.

4. Records of trademark protection for couture fashion brands, such as judgments from courts.

In conclusion, in cases involving industries like "couture fashion," chemical engineering, biopharmaceuticals, etc., when collecting evidence to prove the reputation of a trademark, we should analyze the industry's uniqueness, the relevant public, and the types of evidence, in order to persuade examiners to focus on the industry's uniqueness, consequently accept limited evidence, and recognize the trademark's reputation.