“What does this remind you of?” The answer, from my 11-year-old daughter, was immediate. “That’s Glossier.” To emphasize — the recognition was immediate, and the force of her answer was such that it suggested there was really no other conceivable answer to my question. What made things particularly interesting was that I had not shown my daughter a Glossier product — though judging from the size of her collection it would not have been hard for her to identify one I if had — or even a logo. You know, the traditional things we think about when we talk about brand recognition or trademarks. Nope, all I showed her was a picture of a zippered pouch with air bubbles. Most importantly, it was pink. That’s all it took for her to identify it with the cosmetics purveyor of the moment, Glossier.
We don’t normally associate anything special about pink packaging with beauty products. Even if that packaging is slightly off-beat and evokes something we more readily use for storing a lunch sandwich than lipstick. At the same time, my daughter’s reaction to an image of Glossier’s particular form of pink packaging strongly suggests that the company has succeeded in establishing that packaging as a source identifier in the minds of its target consumers. Or at least one representative of its target consumer base, in my daughter’s case. In fact, it is apparently a thing in my daughter’s school to use your Glossier pouch as a pencil case. And judging by the lines to get into the company’s just-off-Canal Street flagship store even on a cold winter’s weekend day, she and her friends are far from alone in the Glossier fanbase.
It is no surprise, therefore, that Glossier has tried to get a trademark on what it considers its distinctive packaging. And considering the company’s rapid rise in the somewhat-staid world of mass-market cosmetics, it is also not surprising that the company’s IP protection efforts have garnered media attention. In the most recent example I saw, the author easily recognizes one of Glossier’s pouches pulled out of a carry-on bag in a LaGuardia security line: “I could immediately tell she had gotten it from the makeup company Glossier.” Interestingly, she claims that you don’t even need to have been a Glossier customer in order to recognize the company’s pink packaging — even someone who has merely “scrolled through Glossier’s Instagram feed” would “instantly recognize the pouch because it comes in Glossier’s signature shade of millennial pink, with a white zipper and red slide.” We can take her word for it, even if we don’t necessarily agree with her that in the company’s fight to actually procure IP rights on the pouch is an “uphill battle.”
Whether Glossier will procure trade dress or trademark rights on its pouch remains an open question. As is par for the course with all things IP and fashion, perhaps the best analysis of the legal issues involved can be found on Julie Zerbo’s The Fashion Law blog. In a late November post last year, she analyzed both the USPTO’s initial refusal for registration of Glossier’s pink-lined box and “pink bubble wrap pouches” as well as why direct-to-consumer companies like Glossier depend on unique packaging as a differentiator. As she astutely observes: “for a growing number of brands, product packaging is becoming just as essential to the making — and marketing — of products and services, while also proving a critical element in terms of how consumers are interacting with (unboxing videos, anyone?) and identifying brands in the modern market.” Put another way, in a world where there is an audience for watching people open packages, you can be sure that good package design is as important as ever.
More recently, the Fashion Law blog analyzed Glossier’s office action response, where the company made clear that it was trying to register the “claimed color pink as applied to a very particular type and configuration of product packaging” (i.e., the Glossier “Pink Pouch”). In support, Glossier argued that customers already associate the Pink Pouch with the company, as evidenced by media attention, social media postings, and the like. As the article correctly notes, companies in the consumer space are in a constant struggle to generate trademarks in a world where the available pieces of trademark pie have exceedingly been claimed. Add in that companies like Glossier are heavily dependent on social media to generate buzz and sales, and traditional notions of how to build brand equity or protect IP quickly need updating. As Zerbo puts it, the current impact of social media on brand building has led to a “focus on additional, highly visual trademark elements” — with Glossier’s Pink Pouch a prime example.
Ultimately, companies looking to move products — no matter in what form or at what price point — need to capture and maintain the public’s attention while simultaneously establishing themselves as a sought-after source of those products. In a rapidly changing marketing world, where traditional advertising on formerly paramount attention-grabbers like prime-time network TV shows is being displaced by mobile-friendly digital campaigns, any hook a company can use to make a commercial impression is desperately grabbed at. For companies like Glossier, that has meant focusing on the customer experience at the front end with astute use of social media and word-of-mouth buzz, coupled with a premium-feeling post-sale experience highlighted by the company’s packaging. We don’t yet know whether the USPTO will agree to register trademarks for Glossier around the company’s pink packaging. In the meantime, however, Glossier will do its best to keep customers like my daughter feeling pretty in pink.
Please feel free to send comments or questions to me at email@example.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.
Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at firstname.lastname@example.org or follow him on Twitter: @gkroub.
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