Designer brands: be careful what your communication suggests

Deception": a broad interpretation

To qualify as deception, the text refers to "in particular (...) nature, quality or geographical origin".
→ the list is not exhaustive.
Other public expectations may come into play and qualify as deception. These include:
→ "stylistic authorship".

Yes, deception regarding "stylistic paternity" can lead to forfeiture of rights.

The CJEU accepts that "creative origin" can be a product characteristic, in that it can validly constitute one of the public's expectations.
→ So: if you allow a false belief about the style's author to set in, you're taking the risk of misleading your customer and thus risking the forfeiture of your brand if the public is misled.

Cf. point 43 of the decision:
"do not oppose the declaration of revocation of a mark consisting of the surname of a fashion designer on the grounds that, in the light of all the relevant circumstances, the use made of it by the proprietor or with his consent is such as to have the effect that that mark leads the average consumer, who is reasonably well informed and reasonably observant and circumspect, to believe, wrongly, that that designer participated in the design of the goods bearing that mark."

Fortunately, a brand name is not deceptive "by nature".

Forfeiture is not automatic simply because the creator is no longer at the helm, although his or her name is still in use.
It is assumed that the average consumer knows that not all the products of a designer brand are necessarily designed by him or her.

In concrete terms, when does your communication become risky?

The danger: making people believe that the creator is still in charge through the "presentation of the brand".
Lapse is only possible if the use :

• actually misleads the public OR
• creates a sufficiently serious risk of deception,
  This is assessed in the light of "all the circumstances".

In other words: all brand communications: packaging + website + ads + networks, etc.

Examples that could cause problems if the designer is no longer involved

"Designed by [Nom]", "Creative director: [Nom]", "by [Nom]"
Storytelling signature: "based on [Nom]'s vision"
Visuals/ambiance: designer-centric campaign, signature, quotes, archives
"About" pages / interviews / PR that hint at current involvement

Express anti-lapse checklist

Naming & mentions

A patronymic, or a name "à aura auteur", is not neutral: if your communication suggests personal creative involvement, you create a vector of vulnerability → risk disqualification for deceptiveness.
→ References such as "by [creator]" must be based on facts, documented and reformulated as soon as reality changes.

After assignment / license

How can we avoid the impression that the creator is still designing?
→ Audit the communication to detect elements which, taken together, might suggest the designer's current involvement.

Contractual clauses

Protect yourself by drafting a clause on the use of the designer's name and post-departure communication. In particular, by identifying and ruling on the use of creative elements strongly linked to the designer's personality after his departure.

Litigation

For the designer: forfeiture becomes a credible counter-attack, but only with a factual file: communication elements, proof of use, perception.