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The Power of the "Mark": Trademark that is.

June 6, 2016

Kanye West’s “Life of Pablo” has a life of its own!


Kanye West has been a trending sight to behold in fashion for quite some time and he’s decided to share his style with the masses. Less than two weeks ago, a pop-up store for Kanye’s “Life of Pablo” clothing line was launched in Los Angeles. According to Vogue, a tweet about the store’s opening was posted at 7:15pm on Friday, May 20th and by 8pm, there was a line of eager customers waiting for the doors to open on Saturday morning. Some customers waited in the line that stretched around the block as long as fifteen hours just to make a purchase.

 

Celebrities like Jaden Smith and The Game also visited the pop-up shop in L.A. to show their support. In the entertainment industry, it is all about momentum! Kanye West has mastered the craft of keeping himself current. Therefore, the pop-up shops for his clothing store share the same name as his latest album released back in February 2016.

 

There is a “The Life of Pablo” character mark apon filed with the United States Patent and Trademark Office (USPTO) for protection of a clothing line’s name dated February 16, 2016. This is the character mark filed with the USPTO under the clothing category just two days after Kanye released the album:

 

Let’s hope this is the mark associated with Kanye’s fashion line, or else there may be potential infringement issues on the horizon.

 

Trademarks are governed under a federal statute called the Lanham Act. They protect words and symbols that are affiliated with goods and services. The overall purpose of a trademark is to protect consumers, like you and I, from sellers attempting to portray their merchandise under other well-known logos and symbols. The life of a trademark is quite interesting because it doesn’t expire until it is abandoned by the owner or it becomes unprotectable.  

 

Why name the clothing line “Life of Pablo”? Is it simply because of its similarity to Kanye’s album title? Most likely so, considering this connection will add to the strength of the Life of Pablo trademark. Because the brand name “Life of Pablo” has nothing to do with the sale of clothing, it would be very easy for Kanye to secure strong trademark protection for that brand name. It is also a powerful marketing strategy to get fans and consumers fired up about his music.

 

In trademark law there’s a hierarchy of marks, which allows for different strengths of protection. At the very bottom are generic marks, which are not protectable. A generic mark is essentially a term that is commonly used as the name of the type of goods or service to which it is referring.  For example, if someone wanted to trademark a brand of shoes called “Shoes” or a beauty parlor called “The Salon,” the trademark application would be denied because the mark is generic. It wouldn’t be fair to prevent other shoe stores from using the name “shoes” in their brand or the word “salon” for a beauty establishment.

 

Next, there’s the descriptive marks. A descriptive mark describes the service or product it is applied to. You don’t want to fall short of being granted a trademark because you only described your product. For instance, a shoe line named “Red Bottom Shoes” would be descriptive of the Christian Louboutin brand of shoes. In order to receive a trademark for a descriptive mark, it must become distinctive by acquiring secondary meaning. Secondary meaning is achieved when consumers associate the mark to a specific source, which, as a result, heightens the descriptive mark’s strength. An example of a descriptive mark that has acquired secondary meaning and become protectable as a trademark is the brand name SHARP for televisions. Sharp describes the quality of televisions that the company is producing. Without secondary meaning, the name SHARP is likely merely descriptive and not protectable under trademark law. The brand name acquired secondary meaning because after years of sales and advertising, consumers now associate the brand name SHARP with a particular source.

 

Now it is time to build a little muscle with the suggestive marks. The suggestive mark is almost like a riddle or a puzzle because it requires the potential consumer to think about what the product or service is. There’s a thin line between a descriptive mark with a secondary meaning and a suggestive mark. Take Microsoft for example, it suggests software by including the word “soft” in the name, but it doesn’t describe the product.

 

Then, there’s the arbitrary mark, which is a common word or phrase, but the meaning of that particular word or phrase isn’t related to the good or service. Apple is an example of an arbitrary mark because it is a real word, but it is not related to goods or services in the technology field, which is what the company sells.

 

Finally, there’s the fanciful or coined mark. These are the strongest trademarks because the brand name is a made up word by the brand owner and therefore, the sole meaning and association is dependent upon that good/ service. Examples include Exxon and its relationship to petroleum and Kodak for photography. Fanciful is the level of trademark protection that every trademark owner wants to earn; however, it can be expensive to brand a made up word to the ideal level of consumer familiarity.

 

 At this point, “The Life of Pablo” will likely be considered an arbitrary mark because the phrase has no relation to clothing. However, trademark owners should beware that even arbitrary marks can become generic overtime if the brand gets big enough. If consumers begin to associate the brand name with the type of product, rather than the source of the product, a formerly arbitrary or fanciful mark can become generic. Think of “Band-Aid” and “Vaseline.” Both are brand names, but consumers use those names to refer to the type of product, regardless of the brand.

 

Can the “Life of Pablo” clothing line withstand the test of time or is it only relevant for the here and now? The clothing line combines 90s iconic fashion trends with the latest styles. Consumers who made a purchase at the most recent pop-up shop in LA and the pop-up shop launched in New York back in March said it was well worth the long lines and hours of waiting. We may be witnessing the birth of a household name in the fashion industry. Kanye West plays the vital role of creating brand recognition, but the fate of the “Life of Pablo” trademark rests with you. Yes, you meaning the consumer.

 

While the stores may be temporary, “Life of Pablo” can be eternal because the lifeline resides in the Trademark (™)!

 

 

Sources:

 

http://www.vogue.com/13439040/kanye-west-life-of-pablo-store-los-angeles/

http://video.vogue.com/watch/inside-kanye-west-s-life-of-pablo-l-a-merch-store

http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4803:q9oa1.2.1

http://www.trademarkia.com/the-life-of-pablo-86908470.html

https://www.justia.com/intellectual-property/trademarks/strength-of-marks/

 

Disclaimer: This post is not intended as legal advice. 

 

                             

                              

                                  Written By: Antonisha Baker,

                                Editor in Chief, Entertaineur, Esq.,

                                Rising 3L Emory University School of Law 

 

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ENTERTAINEUR,  Esq.

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