I was going through the security line at LaGuardia recently when the young woman in front of me whipped out a pink Bubble Wrap zip-top pouch stuffed with toiletries and put it on a tray. Even though that bag had no logos or words scrawled across it, I could immediately tell she had gotten it from the makeup company Glossier. Since Glossier launched in 2014, it has packaged each product purchased online or in-store in one of these distinctive pouches. If you’ve ever shopped at the brand, or even casually scrolled through Glossier’s Instagram feed, you’ll instantly recognize the pouch because it comes in Glossier’s signature shade of millennial pink, with a white zipper and red slide.
Glossier understands how important this packaging is to the success of the company, which has generated $200 million in VC funding and has a $1.3 billion valuation. Glossier is known for its makeup and skincare products, which have a cult following, but the brand’s fun packaging, the stickers that it liberally gives away, and the pink hue that saturates almost everything the brand produces are all integral to the Glossier experience. In 2018, one million new customers purchased products that came in these pouches, generating $100 million in revenue. That’s why the company’s lawyers are busy filing trademark applications for the pink ziplock pouch. However, Glossier appears to be in for an uphill battle in its fight to trademark its packaging.
While the United States Patent and Trademark Office (USPTO) has a long history of registering logos and unique product names, trademarking other aspects of a brand, such as its packaging, is a relatively new concept. The USPTO has already registered many aspects of Glossier’s brand, from its “G” logo to the product names of several products, such as its wildly popular Balm Dotcom or Boy Brow. But when the application to trademark the pouches arrived at the USPTO, the organization refused to grant it.
Julie Zerbo, a lawyer who writes about legal issues in the fashion industry in her blog, The Fashion Law, has been closely following Glossier’s trademark filings. Glossier’s endgame here is to prevent other brands from creating a similar Bubble Wrap for their products, which could dilute Glossier’s branding and make the pouches and whatever comes in them less desirable to its customers. In fact, Glossier points out that shoe and handbag maker Jimmy Choo released a purse in 2016 that was pink and had a texture that mimicked Glossier’s pink pouches. A trademark would make it harder for other brands to copy the pouch in this way. (Fast Company reached out to Glossier for comment and will update this story when the company responds.)
In a helpful explainer, Zerbo lays out the many reasons the USPTO pushed back against the application. For one thing, laws around trademarks hinge on customers being able to link a trademarked product back to a single source or brand. Hermès has a trademark for the silhouette of the Birkin bag, for instance, and Christian Louboutin has a trademark on the red sole of its shoes, since in both of these cases, the companies were able to credibly argue that consumers identify these products with a single brand.
The USPTO argues that it is harder to make the same case for Glossier’s pouches because Bubble Wrap is a common feature in packaging and shipping. But there are other issues as well. Trademark law is meant to cover aesthetic design, rather than the functional characteristics of a product. That’s because trademarks are not meant to give a brand a specific utilitarian advantage. The USPTO identified the pouches as a “functional design” since the Bubble Wrap protects the goods within it. “That is an issue, as functionality is an absolute bar to registration,” Zerbo says.
Glossier is not backing down. Last week, Glossier brought forth a new 252-page filing. In it, the brand clarified that it was not the pouch itself that Glossier wanted to trademark, but rather the particular shade of pink that is applied to the particular type and configuration of the packaging. (This would be like Christian Louboutin clarifying that it is the particular shade of red, applied to the underside of the brand’s shoes, that should be trademarked, not the shoes themselves.)
The gist of these new documents comes down to demonstrating that the pouches are linked, in consumers’ minds, to the brand. That’s a difficult thing to prove. I immediately recognized the Glossier pouch when I saw it in the TSA line, but how can the brand prove that the majority of consumers would have the same reaction I did? In its filing, Glossier presented articles from magazines and newspapers that mention the use of the pink pouch, along with customers’ social media posts featuring the pink pouch. But it’s unclear whether the USPTO will be convinced by these arguments.
However, Glossier’s desire to trademark its packaging reveals a lot about modern branding. For decades, logos carried a lot of power. This was partly because traditional advertising on billboards and magazines were ideal for showcasing static logos. In the ’90s, when logomania was in full force, it was cool to wear T-shirts plastered with Gucci or Louis Vuitton logos. But this trend has faded in recent decades, as brands have opted for a clean, minimalist look free of logos and overt branding.
Part of this is a product of a new flock of direct-to-consumer fashion startups, such as Everlane, M.Gemi, and Cuyana, which have deliberately chosen to be more subtle in their branding, largely to present themselves as a contrast to the luxury brands of the past. Their products often have no logos on them at all, which is in keeping with their philosophy of selling high-quality, durable products at a good value, rather than encouraging conspicuous displays of consumption.
The move away from logos also dovetailed with a rise in e-commerce, which meant that brands needed to get creative about how they packaged and delivered their products to consumers. Brands often invest heavily in creating unique “unboxing” for customers by wrapping products in distinctive paper and packaging that reflects what the brand stands for. Many customers would then go on to share this experience on Instagram or YouTube, which meant that even more people would see it. Everlane, for instance, opts for lightweight, minimal, recycled packaging that is in line with its ethos of sustainability. Glossier, on the other hand, was all about fun, girly packaging with stickers and pink pouches. In this new world of branding, peripheral objects, including packaging, suddenly become synonymous with the company that makes them.
The problem, of course, is that it is hard for brands to make the case that they deserve the trademarks to these subtler forms of branding, as the Glossier case demonstrates. Ultimately, the law has its limits when it comes to protecting a company’s branding. The lesson is, perhaps, that if a brand is to thrive in the modern world of retail, it will need to continue to be creative with every customer touchpoint, from its packaging to its in-store experience.