The Duchess of Sussex’s latest business venture, As Ever, ignited a legal firestorm after a New York City clothing label accused Meghan Markle of trademark infringement. The dispute highlights critical questions about trademark rights, brand identity, and the legal risks of celebrity ventures in crowded markets.
Meghan announced the pivot to As Ever on Instagram, citing a desire to expand beyond products tied to Santa Barbara (nicknamed the "American Riviera"). The rebrand aligns with her upcoming Netflix series With Love, Meghan, set to debut March 4, 2025.
However, U.S. Patent and Trademark Office (USPTO) blocked her initial application to sell clothing under "As Ever" in 2023, citing "confusing similarity" to ASEVER, a Chinese fast-fashion retailer supplying H&M. The USPTO noted the marks are "identical in sound and virtually identical in appearance."
Meghan’s lawyers removed clothing from the trademark application in January 2024, and secured approval for the name for household goods (jams, pet treats) under "As Ever."
The Fight Over 'As Ever'
Now, the NYC clothing brand As Ever, which has been operational since 2017, has quickly clarified that it had no affiliation with Markle’s venture.
Founded in 2015 by Mark Kolski, As Ever NYC is a boutique brand specializing in reworked vintage clothing. he claims common law trademark rights to the name, asserting his business has operated under "As Ever" since 2017. After Meghan’s rebrand announcement, Kolski spoke out about his company’s limited financial resources compared to Markle’s Netflix-backed enterprise, stating, “Even if I wanted to do something, I don’t think I have the behemoth of lawyers and money that are behind this.'
While Kolski claims common law trademark rights to the name 'As Ever,' experts stress the challenges of relying on unregistered protections.
Common Law vs. Registered Trademarks
A common law trademark is when your business name/logo/identifier isn’t officially registered, yet it is used to identify a business in commerce.
Ben Michael, Attorney at M & A Criminal Defense Attorneys, explained to Retailboss in an interview:
“Businesses do have some rights here with common law trademarks that can hold up in court, but they are still a lot more limited than with a registered trademark." In regards to Kolski, he added, "Due to the small business not owning the trademark for ‘As Ever,’ that really does make it very difficult for them to have a solid case for legal rights to the name.
He added, "The only way they could potentially have a case is if they successfully argue their ownership rights via common law trademark… [which] are only applicable in the specific geographic area in which the business uses their mark.”
This limitation leaves smaller brands vulnerable, especially when competing against entities with broader geographic reach and deeper legal resources. Markle’s team avoided a direct clash by excluding clothing (Class 25) from their trademark application—a strategic move given a Chinese company, ASEVER, already holds that category.
Keziah Colleton, Principal Attorney & Founder at Launchbird Legal, added:
“The issue is that they are confusingly similar… Trademark law allows for brands with the same name to coexist… so long as they aren’t selling the same type of goods." In this case, she added "Meghan Markle filed a very broad application for the use of the brand name As Ever. But, she did not file for class 25, which is for clothing. It is unlikely that Meghan Markle will have to rebrand on account of the similarity of the names of these brands."
She notes, "Problems could arise if she starts selling clothes. Even then, depending on how litigious the clothing company is, Meghan Markle and the other company could enter into a coexistence agreement to avoid costly litigation. Think Dove soap and Dove chocolate. It’s the same name, they’re both in the marketplace, but they sell two completely different products."
This principle could allow both brands to operate if Markle avoids apparel—a key stipulation in her revised trademark filing.
Lessons for Brands
- Prioritize Trademark Registration Early:
- Conduct comprehensive searches using tools like the USPTO’s Trademark Electronic Search System (TESS) and global databases
Register trademarks across all relevant categories to prevent conflicts, as Markle’s initial rejection over “American Riviera” demonstrates.
- Understand Common Law Limitations
- Unregistered trademarks offer narrow protections. Kolski’s NYC brand, while established, risks dilution without federal registration
- Consider Coexistence Agreements
- If overlapping names exist, negotiate agreements to define boundaries (e.g., product categories, regions).
- Anticipate Global Conflicts
- Markle’s team faced hurdles with the NYC label and a Chinese clothing trademark.
- Global searches are essential for brands with international aspirations.
