Essay Requirements:

• Use primary and secondary resources
• It must be critical ie. I want dissenting judge opinbions, article opnioons, scholar opinions
• I want to follow IRAC structure
• Referencing should be footnote + OSCOLA use pdf attached for reference
• Readings should be referred to
• I don’t want descriptions I want analysis and critical thinking
• I want to look at least 2 different jurisdictions
  • EU, UK, US
• I want it to be very focused. Every point should be tied to the thesis
• Make sure essay hits the highest band mark in the grading criteria provided
• Must be 3000 words
• Use the hand book sxzched for reference notes, readings etc. (very important)
• Follow my outline for guidance

Grading criteria:

80-100% (First Class+)
● Extensive knowledge and understanding, evidencing a complete command of the subject with no
factual errors, gaps and/or confusions.
● Flawless identification of relevant and authoritative primary and secondary sources which
demonstrates an exceptional understanding of the material; outstanding application and critical
engagement with the source material which significantly advances the arguments made.
● Answer is highly focused, developed, and convincing; it explores the nuances of the question and
demonstrates an original approach towards the critique and analysis of the assessment question.
● Faultless approach to structure, spelling, punctuation and grammar. This results in an answer that is
logical, engaging and thought provoking for the marker to understand and follow.
● When required, referencing of sources is excellent and accurately presented throughout the work
which always matches the style and substance of the mandatory referencing system.
70-79% (First Class)
● Thorough knowledge understanding, showing a strong command of the subject with no factual
errors, gaps and/or confusions.
● Identification of relevant and authoritative primary and secondary sources, which demonstrates an
excellent understanding of the material; excellent application and engagement with the source
material which advances the arguments made.
● Answer is very well focused and developed, and where relevant, there is engaging critique and
analysis of the assessment question.
● Thoughtful and coherent approach to structure, spelling, punctuation and grammar. This results in
an answer that is logical and engaging for the marker to understand and follow.
● When required, referencing of sources is accurately presented throughout the work which always
matches the style and substance of the mandatory referencing system.
60-69% (Upper Second Class)
● Clear knowledge and understanding of the subject and key principles showing a command of the
subject, mostly free of factual errors, gaps and/or confusions.
● Identification of a range of relevant and authoritative primary and secondary sources, which shows a
clear understanding of the material; clear application and engagement with the source material
which supports the arguments made.
● Answer is well focused and developed, and where relevant, there is some evidence of engaging
critique and analysis of the assessment question.
● Organised approach to structure, spelling, punctuation and grammar. This results in an answer that
is straightforward for the marker to understand and follow.
● When required, referencing of sources is found throughout the work which frequently matches the
style and substance of the mandatory referencing system.

Essay Question:

Title 1 – ‘What do Louboutin red soles, Gucci monogrammed patterns and stripes, and the Bottega Veneta intrecciato pattern have in common? These signs have been, with several others, protagonists of the rising trend of applications to register shapes and other non-traditional signs as trademarks in a variety of countries… [G]ranting rights that allow trademark owners to prevent access to these features to anyone else besides themselves directly translates in securing a potentially perpetual monopoly on styles and aesthetic elements that appeal to creators and consumers.’

Calboli, Irene, ‘Hands Off “My” Colors, Patterns, and Shapes! How Non-Traditional
Trademarks Promote Standardization and May Negatively Impact Creativity and
Innovation’, in Irene Calboli, and Martin Senftleben (eds), The Protection of Non-
Traditional Trademarks: Critical Perspectives (Oxford, 2018; online edn, Oxford
Academic, 21 Feb. 2019), https://doi.org/10.1093/oso/9780198826576.003.0016

Critically discuss this statement with reference to the scope and impact of the
protection of non-traditional trademarks in the fashion industry.

Topics of Research:

Case Studies: Non-Traditional marks

• Louboutin
• Gucci
• Bottega

Topics:

• Registering Shapes as trademarks
• Non-Traditional Trademark
• Monopolies through registering non-traditional trademarks à refer to reading

Readings:

• Calboli, Irene, ‘Hands Off “My” Colors, Patterns, and Shapes
• The Protection of Non- Traditional Trademarks: Critical Perspectives (Oxford, 2018; online edn, Oxford Academic, 21 Feb. 2019), https://doi.org/10.1093/oso/9780198826576.003.0016

• Make sure this essay is critically discussing the statement in the essay question by drawing on judge dissents, law reports, aritcles, primary and secondary sources. Use case laws from differing jurisdictions
• Explore the three case studies in relation to essay question.

Rough idea of how iu want this essay to flow:

Thesis: ….

Define conventional trademark

• Use statutes
  • EU
  • US
  • UK
• Use case law

Define non-conventional trademarks

• Refer to case law 1 – Louboutin –  Louboutin case (C-163/16)
• Refer to case law 2 – Gucci –
• Refer to case law 3 – Bottega Veneta

Critically discuss how cases above allowed for non-traditional trademarks and how that enables monopolies in the fashion industry (make very critical but counter to push thesis argument )

• Use Case study examples from differing jurisdictions
  • Tie it to thesis on how it enduces monopolization
  • How does Louboutin, Gucci, and boteega case incourgae a monopoly
• Use Judge commentary and dissents
• Use articles 
• Use readings
  • Calboli, Irene, ‘Hands Off “My” Colors, Patterns, and Shapes
  • The Protection of Non- Traditional Trademarks: Critical Perspectives (Oxford, 2018; online edn, Oxford Academic, 21 Feb. 2019), https://doi.org/10.1093/oso/9780198826576.003.0016
  • The fashion sector: copyright, designs or unfair competition? Atkinson, Violet; van Caenegem, William, Journal of Intellectual Property Law & Practice, 14(3), 2019-03-01, 214 – 222
  • Trade marks’ functionality in EU law: expected new trends after the Louboutin case ArticleDr Lavinia Brancusi*, European Intellectual Property Review, 41, 2019, 98 – 106

Essay Outline: No need to follow it just an idea

Introduction

• Briefly introduce the concept of non-traditional trademarks in the fashion industry, mentioning examples like Louboutin’s red soles, Gucci’s monogrammed patterns and stripes, and Bottega Veneta’s intrecciato pattern.

• State the essay thesis: to critically discuss the scope and impact of the protection of non-traditional trademarks in the fashion industry.

Section 1: Understanding Non-Traditional Trademarks

• Define non-traditional trademarks and their importance in the fashion industry.
• Discuss the legal framework for the protection of non-traditional trademarks, citing relevant laws and regulations.
• Provide a brief distinction between non traditional and traditional trademarks
• Analyse the process of registering non-traditional trademarks, highlighting the challenges and controversies involved.

Section 2: The Impact of Non-Traditional Trademarks on the Fashion Industry

• Discuss how non-traditional trademarks have influenced the fashion industry, focusing on their role in brand identity and consumer perception.
• Analyze the economic implications of non-traditional trademarks, including their potential to create a monopoly on styles and aesthetic elements.
• Critically evaluate the argument that non-traditional trademarks promote standardization and may negatively impact creativity and innovation.

Section 3: Case Studies

• Discuss specific cases of non-traditional trademarks in the fashion industry, such as Louboutin’s red soles, Gucci’s monogrammed patterns and stripes, and Bottega Veneta’s intrecciato pattern.
• Analyze the legal battles surrounding these trademarks, their outcomes, and their implications for the fashion industry.

Section 4: Critique and Analysis

• Critically analyze the arguments for and against the protection of non-traditional trademarks in the fashion industry.
• Discuss the potential consequences of granting or denying such protection, considering both the interests of the trademark owners and the broader fashion industry.
• Propose potential solutions or reforms to address the controversies surrounding non-traditional trademarks.

Conclusion

• Summarize the main points of the essay, restating the impact of non-traditional trademarks on the fashion industry.
• Conclude with a reflection on the need for a balanced approach to the protection of non-traditional trademarks that respects both the rights of trademark owners and the need for creativity and innovation in the fashion industry.

References

• List of authoritative primary and secondary sources used in the essay.

The commonality among Louboutin red soles, Gucci monogrammed patterns, and Bottega Veneta’s intrecciato pattern is that they are all examples of non-traditional trademarks. Non-traditional trademarks refer to signs that go beyond the typical understanding of a trademark, such as logos or brand names. These non-traditional trademarks include colors, shapes, patterns, and other unconventional elements that are used to distinguish the goods or services of one entity from those of others.

The rising trend of seeking trademark registration for these non-traditional signs has raised concerns. Granting exclusive rights to these features can potentially create a perpetual monopoly for trademark owners, limiting access to these aesthetic elements for other creators and consumers. This trend has sparked debates about the impact on creativity, innovation, and market competition.

Calboli’s article delves into how the protection of non-traditional trademarks may promote standardization and potentially stifle creativity and innovation within the fashion and design industries.

Essay Outline 2 :

Introduction: Briefly introduce the concept of non-traditional trademarks in the fashion industry. Mention the examples of Louboutin red soles, Gucci monogrammed patterns and stripes, and the Bottega Veneta intrecciato pattern. Introduce the statement by Irene Calboli and its implications.

Body

Section 1: Understanding Non-Traditional Trademarks

• Define non-traditional trademarks.
• Discuss the types of non-traditional trademarks (shapes, colors, patterns, etc.).
• Explain the legal framework for non-traditional trademarks, referencing the Trademark Act.

Section 2: The Scope of Non-Traditional Trademarks in the Fashion Industry

• Discuss the use of non-traditional trademarks in the fashion industry.
• Discuss the benefits for fashion brands, such as brand recognition and differentiation.
• Discuss the challenges, such as the difficulty in proving distinctiveness.
• Reference relevant case law, such as the Louboutin v. Yves Saint Laurent case.

Section 3: The Impact of Non-Traditional Trademarks on Creativity and Innovation

• Discuss Calboli’s argument that non-traditional trademarks may limit creativity and innovation.
• Discuss the counter-argument that they may also promote creativity by forcing designers to come up with new designs.
• Reference relevant case law, such as the Gucci v. Guess case.

Section 4: The Potential Monopoly of Styles and Aesthetic Elements

• Discuss the argument that non-traditional trademarks can lead to a monopoly of styles and aesthetic elements.
• Discuss the counter-argument that they can also promote competition by preventing copying.
• Reference relevant case law, such as the Bottega Veneta v. Mango case.

Conclusion

• Summarize the main points of the essay.
• Discuss the balance between protecting brand identity and promoting creativity and innovation.
• Suggest potential solutions or improvements to the current system.

References

List of references, including the Trademark Act and the cases mentioned.

This outline should provide a comprehensive overview of the topic, allowing for a critical discussion of the statement by Irene Calboli. It includes a balanced view, considering both the benefits and potential drawbacks of non-traditional trademarks in the fashion industry.

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