This week, John Lewis launched its womenswear rental service, in partnership with established rental player HURR. John Lewis is the latest in a long line of high-street names getting in on the rental action, championed by the likes of Carrie Johnson, Kate Moss and Holly Willoughby for its sustainability credentials and affordability. Initiatives like Hirestreet, Girl Meets Dress and My Wardrobe HQ bring together rental collections from multiple retailers including Whistles, Hobbs, M&S and Zara. Other retailers are offering direct rentals. LK Borrowed by LK Bennett is an attractive option for people who want a new outfit for every delayed wedding they have been invited to this year, and renting maternity wear from high-end Isabella Oliver is a game changer for those who don’t want to spend a fortune on clothes that have a 9 month lifespan.
Following the launch of the first fashion rental service in 2018, the market for rented haute couture has exploded in popularity. The market is estimated to be worth £2.3 billion by 2029. Given the potential, expansion into rental seems like a no-brainer for fashion businesses, but what should brands entering the rental market consider from an IP perspective? Ensuring adequate trade mark protection should be high on the list.
Trade Mark Considerations
The starting point for all trade marks is that they should cover what a business does now and plans to do in at least the immediate future. Trade marks for existing fashion brands will typically cover clothing and shoes in Class 25, as well as accessories such as sunglasses in Class 9, jewellery in Class 14 and handbags in Class 18. Some innovative players might even have digital clothing registered in Class 9. Registrations often cover retail services in Class 35 too. However, clothing rental does not constitute a retail service and, in fact, belongs in Class 45. Interestingly, many brands which are already active in this space do not have Class 45 protection in place, which is a notable gap in coverage and a good example of why trade marks should be audited regularly to ensure protection keeps pace with a business’ activities.
For businesses entering or expanding into rental, proper clearance searches and early registration in Class 45 are key. Launching a new rental platform without first undertaking clearance searches brings with it a risk that other parties have pre-existing rights in Class 45 which could pose an infringement risk. These earlier rights might be sufficient to force a rebrand for rental services, even where a brand is already known and registered for clothing and retailing. Similarly, if a brand is considering offering rental but has not secured a registration for clothing rental in Class 45, it may have limited recourse to prevent others from using the same or similar brand for a competing fashion rental service.
Given the growing trend in rental, many fashion businesses would benefit from filing in Class 45, either because rental is already underway or as a pre-emptive step. Once registered, a business has five years to use the mark for fashion rental services before the registration becomes vulnerable to cancellation. Registering now would buy brands interested in this emerging market time to evaluate whether rental is the right fit for the business, with the comfort of knowing that the trade mark registration is already in the bag and could be enforced if a rental service launched under an infringing name.
If your business needs assistance with trade mark clearances or registration, please do not hesitate to get in touch.
Co-authored by Oliver Roberts.