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When I was going through security at LaGuardia Airport recently, the lady at the check-in desk pulled out a pink zippered bubble wrap bag full of toiletries and placed it on a tray. Even though there were no logos or scribbles on the bag, I knew immediately that she got it from the cosmetics company Glossier. Since its launch in 2014, Glossier has packaged every product bought online or in store in these unique bags. If you’ve ever shopped with this brand, or just casually browsed Glossier’s Instagram feed, you’ll recognize this bag immediately as it comes in Glossier’s signature pink with white and red zippers.
Glossier understands how important this packaging is to the success of the company, which has raised $200 million in venture capital at a $1.3 billion valuation. Glossier is known for its cosmetics and skincare products and has a cult following, but the brand’s fun packaging, free stickers, and pink hues that accompany just about everything the brand produces make the Glossier experience a must-have missing piece. In 2018, these packages were acquired by one million new customers, generating $100 million in revenue. That’s why the company’s lawyers are struggling to trademark the pink ziplock bag. However, Glossier appears to have an uphill battle to trademark its packaging.
While the United States Patent and Trademark Office (USPTO) has a long history of registering logos and distinctive product names, trademarking other aspects of a brand, such as packaging, is a relatively new concept. The USPTO has registered many aspects of the Glossier brand, from the “G” logo to various product names such as the popular Balm Dotcom or Boy Brow. But when the USPTO received the trademark application for the bags, the organization refused to approve it.
Julie Zerbo, a lawyer who writes about fashion law for her blog The Fashion Law, is closely following the Glossier trademark registration. Glossier’s ultimate goal is to prevent other brands from making similar bubble wrap for their products, which could weaken the Glossier brand image and make the bag and everything inside less desirable to buyers. In fact, Glossier notes that shoe and bag maker Jimmy Choo released a pink wallet in 2016 with a texture that mimics pink Glossier bags. The trademark will make it difficult for other brands to copy the bag in this way.
In a helpful explanation, Zebo lays out the many reasons why the USPTO rejected the application. On the one hand, trademark law depends on the buyer’s ability to associate a trademark with a single source or brand. For example, Hermès has a trademark on the silhouette of a Birkin bag and Christian Louboutin has a trademark on the red sole of the shoe because in both cases, both companies can convincingly claim that consumers identify these products by: A single brand.
The USPTO says it’s harder to make the same argument for Glossier bags because bubble wrap is common in packaging and shipping. But there are other problems as well. Trademark law is designed to protect the aesthetic design, not the functional characteristics of a product. This is because a trademark is not intended to provide a brand with specific utilitarian benefits. The USPTO defines bags as “functionally designed” because the bubble wrap protects the contents. “This is a problem because functionality is definitely a barrier to registration,” Zebo said.
Glossier doesn’t hold back. Glossier filed a new 252 page paper last week. In it, the brand specifies that Glossier does not want to trademark the bag itself, but a specific shade of pink applied to a specific type and configuration of packaging. (It’s like Christian Louboutin explaining that the trademark should be a certain shade of red applied to the soles of the brand’s shoes, not the shoes themselves.)
The purpose of these new documents is to prove that in the minds of consumers, bags are closely associated with the brand. It’s hard to prove. When I saw the Glossier soft bag in the TSA collection, I immediately recognized it, but how did the brand prove that most consumers would have the same reaction as me? In its statement, Glossier presented magazine and newspaper articles mentioning the use of pink teabags, as well as customer social media posts about pink teabags. But it’s unclear whether the USPTO will buy into these arguments.
However, Glossier’s desire to brand its packaging says a lot about what a modern brand is. For decades, logos have held tremendous power. This is partly because traditional billboard and magazine advertising is ideal for displaying static logos. In the 90s, when logos were in vogue, wearing a T-shirt with a Gucci or Louis Vuitton logo was cool. But in recent decades, that trend has faded as brands have opted for a clean, minimal look, devoid of logos and overt branding.
This is partly due to the offerings of a new generation of direct-to-consumer startups such as Everlane, M.Gemi and Cuyana, which have deliberately taken a more subtle approach to their branding, largely to set themselves apart from other fashion brands. Luxury brands of the past. Their products often have no logos at all, in keeping with their philosophy of selling high quality, durable products at a great price rather than encouraging conspicuous consumption.
The ditching of logos also coincides with the rise of e-commerce, which means brands need to be creative in how they package and ship their products to consumers. Brands often invest heavily in creating a unique “unboxing” for customers by packaging their products in unique paper and packaging that reflects what the brand stands for. Many clients then share their experience on Instagram or YouTube, which means more people will see it. Everlane, for example, chooses lightweight, minimalist, recyclable packaging in line with its sustainability philosophy. Glossier, on the other hand, comes in a fun and girly package with stickers and a pink pouch. In this whole new world, peripheral products, including packaging, suddenly became synonymous with the companies that made them.
The problem, of course, is that, as the Glossier case shows, it’s hard for brands to justify themselves as worthy of these subtle forms of branding. Ultimately, the law has its limits when it comes to protecting a company’s brand. Perhaps the lesson is that if a brand is to thrive in today’s retail world, it must be creative at every point of the customer interaction, from packaging to in-store service.
Dr. Elizabeth Segran is a Senior Writer at Fast Company. She lives in Cambridge Massachusetts.
Post time: Aug-07-2023
