Victoria’s Secret Loses Branding Battle Over PINK
I am not a Victoria’s Secret customer. No offense to current patrons, but Vickie’s just isn’t my choice for female necessities. My thirteen year-old self, on the other hand, was a big fan. I remember pooling my babysitting money together and anxiously awaiting the Saturday afternoon that my mom would drop my girlfriends and me off at the mall so we could spend our hard-earned cash on PINK garb. The blush-colored “college-targeted” room always had a separate entrance from the main “adult lady” section. Once I entered the mecca of cheap underwear, I immediately hit up the panty bin, where I could get five pairs for $25. Oh, and I always needed to add to my collection of padded (training) bras in polka dots, stripes, and other obnoxious patterns. But what I really wanted and saved for were the terrycloth sweatpants that had PINK emblazoned on the rear-end, outlined in rhinestones. Those were hot.
Later, my parents informed me that I was quite misguided with my loungewear purchase. Instead of giving me the desired effect of looking fashionable, apparently sporting a PINK stamp on my bum was a fast way to get unsavory attention. Go figure.
Men’s Luxury Shirts v. Glittery Female Underwear
Victoria’s Secret PINK has been serving up puppy logos, glittery nightgowns, and sassy-phrased pajama bottoms since 2001. But it seems that Thomas Pink – the established heritage brand for dress shirts – just got wind of PINK’s existence, and has accused Victoria’s Secret of trademark infringement. How they missed the Victoria’s Secret fashion shows over the last decade is beyond me.
Thomas Pink, which is owned by LVMH Moet Hennessey Louis Vuitton, first sued Victoria’s Secret UK in a British court in May 2013, after the U.S. lingerie giant set up shop on London’s Bond Street and in Westfield Stratford. Thomas Pink’s complaint accused Victoria’s Secret of encroaching on its territory, potentially causing customer confusion with its own PINK branding. The luxury men’s shirt brand that was launched in London in 1984 by three Irish brothers is known for quality and tradition, while Victoria’s Secret reputation is based on sex.
The UK action prompted Victoria’s Secret to lodge a declaratory judgment in the US in July 2013 seeking clarification of “the rights of the parties, allowing them to peaceful coexistence that has been in place for many years.” Such a filing is essentially asking the court to hold that VS’s PINK collection is not infringing Thomas Pink’s mark, without having to go through a traditional round of litigation. The July declaratory judgment was later withdrawn, and a new one was filed in an Ohio Southern District Court (where VS is headquartered).
No More PINK Sweatpants?
As of July 31, 2014, Thomas Pink has won its infringement case in the UK. In his judgment, London’s High Court Judge, Colin Birss, held that Victoria’s Secret has in fact infringed Thomas Pink’s trademark rights, as customers of the shirt company could be confused into thinking the two brands are in some way associated with one another. 
A quick aside about trademark infringement: In order to prevail, a plaintiff must establish that they own a valid mark, that the defendant has used the plaintiff’s mark in commerce, and that there is a likelihood of consumer confusion between their brand and the defendant’s brand. For more information on trademark infringement analysis, read here and here.
The key inquiry is consumer confusion. Not once when visiting Victoria’s fuchsia underwear shrine did I ever think, “This would be a great place to find a button-down shirt.” Besides, a Thomas Pink shirt is on par with the likes of Burberry and Hugo Boss. The Stewart Stripe Shirt with a double cuff retails for $290.00. I could buy at least thirty pairs of panties at Victoria’s Secret for that. More significantly, both stores have co-existed in malls across America since Victoria’s Secret launched their PINK line in 2001. It seems that if there had been an issue, Thomas Pink would have raised their hand a few years ago. The likelihood of confusion is low, but Thomas Pink seems to be most concerned about tarnishment of its brand and image.
The UK ruling means that Victoria’s Secret will be forced to pay monetary damages. More importantly, it means that VS will no longer be able to sell its PINK collection in the European Union. Luckily for VS, it has only been offering PINK goods via their shop-inside-a-shop boutiques adjoined to the main body of their stores. Thus, they won’t have to close down their brick-and-mortar locations.
What will happen to Victoria’s Secret PINK in the US is yet to be determined, as the Ohio case is still pending. So, if you’re still a loyal VS customer, my advice to you is to buy all the rainbow panties and sweatpants now, before the beloved PINK line is kicked out of your local mall.
Featured Image by Cyril Attias via Flickr Creative Commons.
Phi Beta Pink?? image by Arthur via Flickr Creative Commons.
Thomas Pink Store image by Julie Gibson via Flickr Creative Commons.
Victoria’s Secret PINK store image by Steve Rhodes via Flickr Creative Commons.