Megan Markle has faced several trade mark struggles related to her lifestyle brand ventures. These issues primarily revolve around securing and maintaining unique and coined trade marks for her brands. Initially her envisaged brand was for American Riviera Orchard where after she rather decided to rebrand it to As Ever.
The key challenges include the following:
American Riviera Orchard
Descriptiveness of the word ‘Orchard’.
The USPTO also found the word “orchard” to be descriptive of some of the intended goods, particularly food and beverage items. Locally, in South Africa anything that is purely descriptive of the goods and/or services covered, or is reasonably required for use in the relevant trade, will not be afforded trade mark protection. Preferably, a trade mark for a business should be something coined and unique which does not refer, descriptively, to the product/services in question (nor any closely related). For example, “Freshly Baked Bread” for bread; “Cheese” for cheese products or “Sweet Apples” for apples.
Stylized logo issues
There were also reported issues with the quality of the trade mark applications, including a heavily stylized “O” in one application that was not clearly recognizable as a letter.
Conflict with “Royal Riviera”
A company names Harry & David, which owns the trade mark “Royal Riviera” for similar goods, reportedly filed a letter of protest, citing a likelihood of confusion between the two brands.
Abandonment
Due to these mounting challenges, Markle eventually abandoned the “American Riviera Orchard” trade mark applications and rebranded.
As Ever - 
Similarity to existing trade mark
Markle’s subsequent brand name “As Ever” has now also encountered trade mark problems. The USPTO reportedly ruled that “AS EVER” was too similar in sound and appearance to “ASEVER”, a trade mark owned by a Chinese clothing company outlet. This prevented Markle from using “As Ever” for clothing products.
Logo similarity to Spanish Coat of Arms
VS
The logo for “As Ever”, featuring two hummingbirds flying towards a palm tree, has drawn criticism for its close resemblance to the coat of arms of Porreres, a town in Mallorca, Spain. The mayor of Porreres expressed shock at the similarity and stated the town’s limited financial resources, they are requesting the removal of the logo.
Conflict with “As Ever NYC”
A New York-based clothing company named “As Ever NYC”, which has been operating since 2017, also raised concerns about the similarity in brand names. While they don’t own the trade mark for “As Ever” they have been seeking legal advice to protect their brand, citing potential consumer confusion.
GENERAL IMPLICATIONS AND LESSONS
Markle’s trade mark struggles highlight the complexities of brand protection and the importance of thorough due diligence.
Importance of Comprehensive Trade mark searches
Conducting extensive searches locally and as well as in any other countries where you might envisage to use your brand before settling on a brand name and logo is crucial to identify potential conflicts with existing trade marks. This includes checking official databases, common law uses, domain name availability and social media handles.
Distinctiveness of trade marks
A trade mark needs to be distinctive and not merely descriptive of the goods, services, or their origin. Geographical terms are generally difficult to trade mark exclusively.
Global considerations
For brands with international aspirations, it is important to consider trade mark protection in all the relevant countries/jurisdiction applicable.
Despite challenges, Markle’s “As Ever” brand has moved forward with a range of products, including jams, honey, teas and edible dried flowers. The ongoing trade mark issues, however, serve as a reminder of the legal complexities involved in establishing and protecting a brand.
