A recent BBC article entitled “Havaianas: How a Brazilian flip-flop took over the world” doesn’t mention IP once, yet it contains some useful IP lessons.
The article looks at how Havaianas went from a cheap, working-class footwear brand in Brazil to a highly successful international fashion brand – the company behind the brand, Alpargatas, now sells some 200-million pairs of flip flops per annum, has dedicated shops in malls all over the world, and was recently sold for USD1-billion. So, how did the company manage this remarkable turnaround, and how is any of this relevant to IP?
The article says this: “It is one of the simplest shoes on the planet: a piece of plastic, roughly the outline of your foot, with a crude strap holding the sole to your toes.” What that’s telling us is that there’s clearly no technology involved here, the company didn’t achieve its success on the back of patents.
What Havaianas does have, however, is a very strong identity. The article says that Havaianas come “in all colours and styles … strappy ones, shiny ones, ones in the colour of your favourite football team, ones with huge platform wedges.” It goes on to say that “it is this strong identity that has helped it hold its own against cheap versions of what is an easy-to-replicate design.”
So, what constitutes this strong identity? Well, for starters, there’s the name, a distinctive one that stands out from the crowd and that the company would probably have found quite easy to protect and enforce.
Then there’s pattern and ornamentation, things that can be protected through both trade mark and design registrations. The issue of pattern and ornamentation in the context of shoes has come up in various trade mark cases. One of these cases, in fact,involved Havaianas, where Alpargatas sued a company called Too Beach for trade mark infringement, and Too Beach defended by claiming that the trade mark registration was invalid.
A French court held that a European trade mark registration that Alpargatas has for a figurative trade mark that it applies to footwear is valid – this trade mark was described in the proceedings as “a pattern composed of two symmetrical sequences of geometrical figures in the form of an elongated S, intertwined and positioned slantwise”. The appeal court held that the pattern is seen as a trade mark by the French public and that it has become distinctive – there was survey showing an extraordinary 92% public recognition of the pattern. The court made the point that the pattern is arbitrary, and that the mere fact that it is decorative doesn’t mean that it doesn’t function as a trade mark.
In South Africa, the significance of pattern and ornamentation as a trade mark has also been recognised. In a counterfeit case involving Puma and Rampar Trading, the Supreme Court of Appeal held that Rampar Trading copied Puma’s distinctive split form trade mark on the inner and outer sides of its shoes. The argument that Rampar Trading merely used the pattern as ornamentation was rejected by the court. Colour also clearly plays a big role with Havaianas, and this is something that can potentially also be protected by trade mark law. Colour does tend to be important in products, including footwear, and we’ve written many times about this in previous articles.
So, there is, in fact, considerable IP behind the Havaianas success story, despite the fact that the product is about as low-tech as it gets.