Waking Up Dormant Brands – A Growing Trend?

By Elaine O’Hare, (pictured above) Senior Associate at Stevens & Bolton LLP

A forward-thinking outlook and a modern online presence are of paramount importance to today’s global fashion brands. However, many of the most famous designers rely heavily on their longevity and historic roots to add to the desirability of their products. But for every Hèrmes (est. 1837), Louis Vuitton (est. 1854) and Burberry (est. 1856) there are plenty of once-successful brands that have all but disappeared from the industry and collective consciousness. This can be due to historical factors (many fashion houses had no choice but to shut during World War II), or a sign that something wasn’t quite right with the business, the aesthetic, or the marketing. Nevertheless some of these brands retain a cultural cachet, which can lend value to the idea of a revival. Rather than allowing them to be ‘lost’ to fashion forever, or only to pop up as vintage pieces on the arms or silhouettes of fashion bloggers, some entrepreneurs have made a business of giving these brands a fresh start for a new generation.

Over the last couple of decades we have seen a number of brands being rejuvenated, with greater and lesser degrees of success. Balenciaga was revived in 1997 after 29 years of dormancy, Vionnet (image from the SS18 Vionnet collection right) in 2006, 67 years after the label had closed, and 1960s and 1970s cult brand Biba is currently selling in House of Fraser stores, to name but a few. On the plus side, there is in-built brand heritage; an authenticity which comes almost stitched into the products’ materials. However, it is not always straightforward to iron out the legal aspects of relaunching a brand after such a long time.

It is crucial to secure all the appropriate intellectual property rights. There may be a registered trade mark or perhaps a small portfolio of trade marks, possibly a signature pattern, monogram or logo and there may even be some original designs which are planned to be part of the relaunch. Such IP rights may be split across various owners and jurisdictions so it is important that work is done to collate all these rights and secure ownership of them before considering a relaunch.

There may also be particular obstacles, or thorny issues to be aware of, in different jurisdictions. For example, in the UK a ‘passing off’ action can be brought on the basis of residual goodwill in a trade mark or logo. So, even though a mark is not currently registered or has not been used for a number of years, it is not safe to rely on there being no recourse for the owner of the unregistered rights in such a case.

The ‘reviver’ of the brand will also have to carefully consider the distribution system they plan to use. Most luxury brands operate selective distribution networks in order to preserve the prestigious image of the products. Such networks involve agreements with distributers which give the brand owner approval over the outlets or online platforms through which the products are sold. Although many luxury brand revivals will understandably launch exclusively via bricks-and-mortar stores, in the longer term the owner may, for example, wish to prevent the products being resold on third-party platforms such as Amazon and eBay. There have been questions raised in the Courts as to whether such arrangements are anti-competitive but a December 2017 ruling by the European Court in a case involving Coty confirmed that such arrangements are lawful as long as they are genuinely necessary in order to preserve the luxury image of the goods.

If these legal and commercial points are dealt with carefully, the revival of historic brands is certainly a lucrative business model. Heritage and longevity is after all, not something that can be faked. No matter how classic a new brand’s aesthetic, it can’t recreate overnight the cachet that one hundred years of perceived experience and longevity inspires in consumers. Further, the market for heritage brands is expanding, with huge growth in markets such as China, where a fast-growing young consumer base, used to cheaper alternative products, is increasingly obsessed with owning the ‘genuine article’.

Of course, genuine heritage brands are a finite resource, but for now it seems that one way forward for fashion may be to spend a little time looking back.

Thanks to Elaine O’Hare.

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