Feel Archives is a brand that was launched by Felicia Pang at the Singapore Stories 2022 contest, organized by the Singapore Fashion Council. The contest invited designers to create a 6-look capsule collection on the theme, “Fashion United”, aimed at positioning Singapore as a hub of diversity and multiculturalism in fashion and Asian arts. Singapore Stories and feel archives were featured on the Tatler Singapore YouTube channel in Nov 2022. Feel archives has an Instagram page with 150+ followers.
Under the feel archives label, Felicia has sold a few accessories (lace gloves and floral-styled earrings) and her 6-look dress collection has been loaned to be worn at events (by Miss Singapore, for example). The price of each dress is ~1500 SGD putting it in the premium occasion-wear category. The loan rates for the rent-per-day business model are ~30% of the cost of the dress. Short-term plans include the launch of a workwear collection for women (priced in the few hundred dollars range). As of now, her consumers are from Instagram or word-of-mouth but Felicia plans to open an online store and ship internationally. At the moment her focus is on the Singapore market. Below are considerations for different possible IPs and an early-stage outlook on a business-derived IP strategy based on a detailed conversation with her.
Patents – There are no inventions now be it products or processes – her collection used a known manufacturing technique that is based on recycling “deadstock” fabric and “upcycling” them to create her dresses. There are also no digital elements such as apps in this nascent business so there are no considerations for patenting.
Trade secrets – Trade secrets can exist in several aspects of her business as long as (a) that information has some potential commercial value, (b) she takes steps to keep it a secret and (c) that information is generally not known to persons within the relevant business circle. Sources of potential trade secrets could be her design & manufacturing processes, sketches, tailoring know-how, supplier/distributor/collaborators/ customer lists and related info. She is advised about what confidentiality agreements are and how these could form the basis of exploring business relationships with her manufacturers, investors and consultants but the willingness of these partners to sign an NDA may be out of her control.
Designs & copyright – Registered Designs (RDs) in SG are required to be new but need not possess individual character (a requirement in UK/EU). Felicia’s 6-look collection was based on the Peranakan art theme and her collection has a heavy floral touch. Her collection had an explicit 3D flower petal arrangement based on a known technique called “applique” (Fig. 1). I used Google Lens to screen for similar products and confirmed that these petal arrangements are not new (Fig. 2). However, she says the vegan suede fabric used in her collection produces a new aesthetic and so the applique arrangement made of vegan suede may be registrable as a design. However, her designs have been disclosed on Instagram / fashion shows and we are beyond the 6 month grace period in SG. She also believes her brand will not have a central design theme and so registering a design knowing that (a) it is difficult to have a completely new aesthetic in fashion design; and (b) the lifetime of fashion designs is short, seems unnecessary despite the low cost of registration. SG designs are only checked for formalities, so, although it may be easy to have an RD, it is uncertain how enforceable these would be. Nonetheless, she is advised that the 6-month grace period for RDs in SG allows her to follow a “try the market and then register” approach. If she finds that a specific design attracts a lot of customers, she can consider design protection to exclude others from selling the same design.
Fig. 1: Feel Archives’ applique design Fig. 2: Google lens search results sample showing applique design
Fig. 3: Potential sources of design rights for feel archives – earrlings, vegan suede applique design, gloves
Generally, given the functional nature of fashion articles, it is difficult to view them as artistic works for the purpose of copyright protection. Although a few foreign jurisdictions are exceptions to this generalization, this may not be the case in SG or SEA jurisdictions. It is noteworthy that, in SG, there is no (dual) protection by copyright for artistic works which have been registered as designs. Moreover, artistic works which have been industrially applied (over 50 articles) will not be protected by copyright even if they have not been registered as designs. The less than 50 articles condition could apply for occasion wear / bridal wear pieces of the feel archives brand but will likely not be true of her work wear range.
In some jurisdictions, designs on the surfaces of clothing may be copyrightable per se if the design can satisfy the originality threshold. The bar is extremely high though – patterns, motifs and brand flags (Tommy Hilfiger) were judged to fall below the requirement of creativity and hence were not considered original.
Her design process involves sketching on notebooks and she is advised that copyright could subsist in those drawings in certain jurisdictions if they are original (the other criterion, authorship is met). Copyright could also subsist in photographs of her dresses that are taken by her for Instagram and future website. Content on her socials and website such as product descriptions and storytelling, are protectable per se under copyright as literary works. For all of these, she is advised of the fact that copyright registration is automatic and of the importance of dating her physical/digital sketches.
Trademarks (TMs) – I find this to be the most relevant IP now. She is committed to the feel archives name since she wants her brand to embody the meaning of this phrase. Feel archives has a conceptual meaning to her – she wants her brand to be an expression and extension of her emotions/ feels; archives refer to retro elements in her design. Given her long-term intention to use the name and the current use of this name in the business, I believe TM protection is an apt starting point for executing an IP strategy. TM registration is also a relatively inexpensive affair for a solo entrepreneur (compared to patents) and given that clothing items are discrete, affixing and using TMs is easy and also commonplace in fashion.
Being mindful of her future international and online aspirations, I did a wide availability search for feel archives on WIPO Global Brand database and also a specific SG register search (both across all 45 classes). Specifically, given her interest in premium women’s clothing, workwear and accessories, I curated the list of goods and services for the scope of TM protection relevant to her business as follows (based on IPOS pre-approved list):
Class 25 – clothing, dresses, dressing gowns, wedding dresses, cocktail dresses, silk clothing, costumes, masquerade costumes, embroidered clothing, jackets, tuxedos, scarves, lingerie, kimonos, cheongsams, shirts, trousers, suits, stockings, vests, tee shirts, skirts, stockings, coats, business attire, formal wear, gloves [clothing], hats, dress handkerchiefs, clothing made of leather, fashion hats, veils [clothing], wraps [clothing], boots, shoes.
Class 14 – jewelry, articles of imitation jewelry, ankle bracelets, anklets [jewelry], artificial jewelry, bangle bracelets, bangles, body jewelry, boxes for jewelry, bracelets, bracelets made of embroidered textile [jewelry], brooches [jewelry], brooches being jewelry, chains [jewelry],charms for jewelry, choker necklaces, chokers, clip earrings, clasps for jewelry, costume jewelry, cufflinks, custom jewelry, decorative pins [jewelry], drop earrings, ear ornaments in the nature of jewelry, earrings, ear studs, fashion jewelry, finger rings, hoop earrings, hat jewelry, imitation jewelry, jewelry made of plastic, lapel pins [jewelry], necklaces [jewelry], pendants [jewelry], plastic jewelry, rings [jewelry], rings [ trinket], tiaras, trinkets [jewelry], women’s jewelry.
Class 35 – Retail services for clothing; retail services for jewelry; online retail store services featuring clothing; online retail store services featuring jewelry.
While class 45 was also considered for clothing rental (a business model that was employed by her at a small scale), she is certain that this will not be the way forward and so I did not include class 45. The cost per class is 280 SGD so the total cost for this scope would be 840 SGD. If we go for a specification that is not in the IPOS pre-approved list, the cost is 380 SGD per class. The IPOS pre-approved list is the logical choice and fit for the purpose.
The intended mark has so far been presented on clothes in a stylized, handwritten (her handwriting) manner:
For the current TM application, we can represent the mark in the stylized form and in addition to that, in plain black font. This is still a word mark and hence it makes sense to register the word mark as such in black font minus the stylization, FEEL ARCHIVES. Word marks registered this way can be used in relation to the goods in any color/ capitalization/ font since the average consumer would perceive the word mark for the words and features such as font will likely not alter the distinctive feature of word marks (SG and UK case law).
SG register – The Feel Archives word mark is available for registration in SG. There are several marks that contain the “feel” word and a few with the “archives” word but none with the combination, feel archives. Particularly in class 25, the “feel” word seems to be a popular choice and “archives” (or similar such as archivio/ archie ) less so.
Nonetheless, as a whole, the feel archives mark does not exist in any class. In terms of distinctiveness, I do believe it to be of a moderate to high degree of distinctiveness. Feel is somewhat descriptive of clothing and a few accessories; clothes have a feel physically and clothes/accessories could evoke feelings such as confidence, power etc. Archives could also be descriptive of goods in classes 25 and 14. Archives are historical accounts or repositories and clothes/jewelry could be archived, but I believe this is somewhat less descriptive than feel. Considering the mark as a whole, feel archives would be perceived as a collection of feels / emotions. This whole mark does not describe goods in classes 18 and 25 as such, at least, not directly. Thus, feel archives would be a mark with moderate to high inherent distinctiveness w.r.t classes 25 and 14.
I analyzed a few potential risks posed by the SG register, particularly ones containing the feel word in class 25 – the word mark FEEL ROGUE, word mark FEEL ALOHA (written in 2 lines in a rectangular outline box) and the composite (word + figurative) mark, FEEL ALIVE.
The word, FEEL, is common to the dual word marks, FEEL ROGUE, FEEL ALOHA and FEEL ARCHIVES. In an infringement decision (SGHC 175), the marks, POLO and POLO BY RALPH LAUREN were determined to be visually & aurally dissimilar to POLO PACIFIC. It was made clear that just because there is a common denominator between 2 marks (in this case, FEEL), it does not mean that the other component will not be sufficient to signify a different badge of origin. Also, FEEL is descriptive of clothing and hence the less distinctive component in the marks. Instead, ROGUE, ALOHA, ALIVE and ARCHIVES are certainly more distinctive. If we pay more attention to the distinctive components (while not completely ignoring the descriptive FEEL word), the visual and aural differences are obvious. Furthermore, conceptually, all 4 are different. ROGUE is a French word and in SG, it will not have a conceptual significance to the average consumer. ALOHA alludes to the beach-life , ALIVE to activity/exercise and ARCHIVES to a historical collection/repository. In the case of FEEL ALIVE., the figurative element is equally dominant, rendering the whole mark dissimilar to FEEL ARCHIVES. Overall, I do not believe any of the FEEL marks are similar to FEEL ARCHIVES. Other pending marks such as BLISSFEEL, STRONGFEEL, CHARGEFEEL would be dissimilar to FEEL ARCHIVES too.
Global Brand database – Feel archives word mark is available for registration in all jurisdictions covered by this database. I further narrowed the search to classes 25 and 14 in the following registers – USPTO, EUIPO, JPO, India, Vietnam, Thailand, Malaysia, Philippines, Korea and Australia. SE-Asia could be FP’s next market and fortunately, apart from FEEL ROGUE registrations in Malaysia, Thailand and Philippines, there are no other hits. The Japanese mark, ARCHIVES, for class 14 only, could be a potential risk and I am uncertain as to how JPO would judge a potential opposition. Fortunately, at the very least, the mark may not be a risk for class 25.
With an SG application / registration, she can pursue an international filing using the Madrid protocol. As an example, the costs of Madrid application with SG as the office of origin for 2 classes designating the SEA markets of Vietnam, Thailand, Malaysia and Indonesia would be ~2500 CHF. The addition of the big markets of China & USA to this would raise costs to ~3800 CHF.
Alternatively, Felicia can also use the SG application to claim Convention Priority in member countries within 6 months from date of filing the SG application. For multiple countries, however, this will be inefficient both administratively and financially. If not, she can simply file new applications as and when needed, without claiming priority. Given the early stage of her business, this approach would be sensible and cost-effective compared to a rushed Madrid application with a hypothetical collection of countries.
A question (aptly) raised by her was: Of what use is a registered TM if one does not have the resources to enforce it to combat infringers? To begin with, having a TM on the publicly accessible register should in itself serve as a deterrent to prevent third parties from using a similar name for similar goods. In case of TM infringement, a simple and inexpensive cease-and-desist letter may suffice to arrest the infringing conduct of a third party. Looking beyond enforcement, a registered TM is an IP right that can be used to raise investor money. Lastly, as the brand gets bigger, registered TMs can be licensed, thereby being a separate source of cash flow to her core business.
As for the decision on the timing of TM filing, it was decided that now may not be the most optimal time for filing the TM for budgetary reasons. This may also make some strategic sense; as of now, her consumer base and sales are minimal and where there is no custom, a trademark need not be the top priority. TMs are also a “use it or lose it” right and a continuous period of 5 years of non-use may lead to full or partial revocation attacks so a TM owner must have at least a general business plan for the short-to-medium term to exploit the right. A TM can be a powerful tool to build brand loyalty but this only takes effect when there is a clear demand for the specific brand message and quality signaled by the TM. On the flipside, anyone can file a TM for FEEL ARCHIVES and since TMs can be filed with a bona fide intention to use, failure to protect your brand can lead to it being usurped on the TM register. While SG recognizes unregistered TM rights through passing off, the requirements to succeed in such an action are rather onerous and it is safe to assume that goodwill in the feel archives name is non-existent at present. Thus, not registering a TM for feel archives is a very real IP risk that she is willing to live with…currently!
About the blogpost author:
Sachin Seshadri (MSc, MIPLM) is a biologist turned IP professional. He holds Masters degrees in Engineering and in Science from India and Singapore respectively with 3 publications to his name. He works as a Senior IP and Licensing Manager at Duke-NUS Medical School in Singapore, where he helps build the Singapore biotech ecosystem by leveraging the school’s intellectual property. Previously, he was a scientist at Temasek Life Sciences Ltd. in Singapore and specialized in synthetic biology. He has a keen interest in all IP things and has cleared the patent drafting paper in the Singapore Patent Attorney Qualifying Examination, which had a pass rate of less than 20%.