How luxury culture will shape the law

Professor Irene Calboli of Marquette University Law School and the National University of Singapore pointed out that though trademarks are intended to be a source indicator, there has been a shift in the last 50 years and trademarks now play a much bigger role in our cultural dialogue.

Shifts in cultural norms are now bringing changes to trademark law. Professor Dan Hunter of Queensland University of Technology and New York Law School said that as luxury buyers move away from goods with large and highly visible logos to more subtle design-based indicia, such as flared gussets on women’s handbags, companies will increasingly rely on trade dress protection. This, Hunter explained, can be legally very challenging.

“Some of the areas in trademark law that are the most problematic from a theoretician’s point of view stem from the interaction between trade dress and functionality, trade dress and distinctiveness,” he said. “You end up having to make these extremely difficult determinations that end up being a crapshoot as to whether they turn out the way you want.”