May 27, 2008 12:32 PM

Can Victoria's Secret Trademark "So Sexy"?

Posted by Zach Lowe

The word "sexy" is at the center of a trademark battle between lingerie giant Victoria’s Secret and a California company claiming it used the adjective first to describe a line of hair care products.

At issue is whether Victoria's Secret's "So Sexy" hair products line confuses the market, given another line of hair care products from California-based Sexy Hair Concepts.

Victoria's Secret tried to trademark the phrase "So Sexy" last year, but the federal Trademark Trial and Appeal Board rejected the application after Sexy Hair objected, says Roberta Jacobs-Meadway of Eckert Seamans Cherin & Mellott, counsel to Sexy Hair.

The Philadelphia firm has represented Sexy Hair Concepts before. The company has been marketing "sexy"-themed hair products for ten years, according to Jacobs-Meadway.

Victoria's Secret is fighting back. On May 23 the Columbus-based company filed a motion asking Manhattan U.S. district court judge Gerald Lynch to consider a survey of 308 people who purchased any hair care product associated with the word "sexy," the Associated Press reports. Only five respondents associated the word with a single company and knew of Sexy Hair Concepts.

New York intellectual property boutique Colucci & Umans is representing Victoria's Secret. Calls seeking comment were not immediately returned. The law firm has represented the company in the past, according to a list of clients on Colucci's Web site.

The plaintiff has filed a motion for summary judgement in its attempt to prevent a trademark. It is not, Meadway emphasizes, trying to ban Victoria's Secret from using the word "sexy" in its marketing.

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