“Welcome to ‘New Bottega’ – a term that, for many, carries the same sentiment as ‘Old Céline’, which is where 34-year-old designer Daniel Lee worked under the tutelage of Phoebe Philo before joining the Italian house Bottega Veneta in 2018. Daniel Lee, fashion’s current wunderkind (at least according to the crowd still swooning about Philo’s particular brand of restrained yet never dull elegance) is the current creative director of the label from Vicenza. You’ve likely seen his square-toed sandals and buttery calf leather bags on your instagram feeds a hundred times. It was clear after his very first collection, that, while honoring the house’s heritage, sense of craftmanship and savoir faire, Lee set the Italian house on a bold new course. Last year he won not only one, not two, nor three, but four UK fashion awards. His star is rising – and so is Bottega’s. On the rise along with them is the worth of Bottega’s IP such as it’s trademark: the Intrecciato weave – as well as the number of high street copies (like the one by Zara pictured above).

Weaving a trademark

The Intrecciato is a hand-woven leather pattern consisting of “slim, uniformly-sized strips of leather, ranging from 8 to 12 millimeters in width, interlaced to form a repeating plain or basket weave pattern placed at a 45-degree angle”. The Intrecciato is used in all major Bottega Veneta products, for instance, in wallets, purses, handbags, shoulder and clutch bags as well as shoes. The Knot (another one of Bottega’s “trademarks”) is a striped knot shape design with caps at each end which is attached to a clasp in clutch bags or on the cap of fragrance bottles with the same name.

The ‘Intrecciato’

Traditionally, trademark law protects words, logos and combinations thereof, which designate the source of goods and services. However, it is also possible to identify the source of goods by the visual appearance of a product. As a consequence, the design, shape or a particular arrangement of materials of certain products may be protected by intellectual property rights. They may be considered as a form of trade dress (thought that term is not used in European law) and be registered as a trademark. Bottega Veneta tried to register the Intrecciato in the US before and secured trademark rights after initial opposition by the examining attorney in 2013. In the European Union no registrations for neither knot nor weave exist.

The Bottega knot

Programming competition law protection

But trademark law is not the only mode of protection. We talked about unfair competition law in our article about coffee presses before. And here is the thing: competitive originality – and consequently passing off protection – can be acquired by a whole series of products as long as they all share original components which signify to the customer that all of them belong to the same proprietor. The German Federal Court (BGH) ruled about such a mode of protection for “product programs” in the “Rillenkoffer” cases. In those cases Rimowa took action against plagiarisms of their prized suitcases.

A product has competitive originality if its specific design or certain features are capable of informing the interested public of its commercial origin or its special features. According to BGH case law, a product range as a whole of products with common purposes and design may be granted protection against competition under certain conditions. It is not a prerequisite that each individual part in itself has a competitive characteristic. Rather, it may also consist of a recurring design with characteristic features which have the effect that the objects belonging to the program clearly stand out from goods of other manufacturers for the purpose of trade. The assessment must be based on the overall impression of the product series. However, if the features that give the series character are only a minor part of the overall impression, the competitive originality of the series is low or has to be denied.

Having a passing off defence in relation to a whole series of products which share the same characteristics is a powerful tool. Unfair competition law offers fast injunctive relief and developed case law, allowing brand owners to effectively protect their products from plagiarism.

Crafting a copyright

Copyright protection for a style like the Intrecciato is much harder to achieve however. At the core lies a central tenet of copyright law. It does not protect ideas themselves, but only the expression that convey and make them perceptible to others. Consequently, works based on the same idea, but differing in the essential elements of expression, are in fact lawful. It is (only) the slavish imitation of what others have conceived and expressed in a certain form, that the law forbids. When comparing two works, normally the parameter for assessing whether a work is new, compared to another (which may have inspired it), is that of the presence of a certain “distance” between the previous and following one. That means the capacity of the subsequent work, beyond its similarity/identity with the previous one, to transmit its own and different artistic meaning insofar as it borrowed from the works individualizing or creative nucleus.

Apart from this, the question wether the Intrecciato can be protected in the first place likely has to be answered negatively. Interweaving leather is not a highly individual result of imagination. A style itself is much to broad in scope for protection and has to remain open for use by others. The Bottega Intrecciato merits protection (only) because customers mentally connect such weaves to the Vicentino brand and not because the original masters Michele Taddei and Renzo Zengiaro created something especially creative. Their achievement lies more in the realm of excellent craftmanship. Consequently no copyright protection is possible.

The future of the house of Lee

Bottega managed to secure IP rights in the US so far. But given the fact that no trademark rights exist in the European Union, a move for registration on this side of the ocean will likely follow sooner rather than later. The EUIPO will have the same holdups as the USPTO, namely the question wether both the Intrecciato and the knot are functional or decorative. But given the positive outcome (in the end), the examiner will likely engage with the arguments of their American colleagues. We await the next move of Bottega Veneta with great expectations.

Picture: syn_agency