The Case for Color: Can Louboutin Protect Red-Sole Trademark?

By Joseph Mandour on January 9, 2012

shoes-redsoles-200x144 Los Angeles – Later this month, the United States Court of Appeals for the 2nd Circuit will hear arguments from both sides on high-fashion shoe designer Christian Louboutin’s appeal to retain the trademark for red lacquered shoe soles. This stems from a trademark infringement lawsuit Louboutin filed last year against competitor Yves Saint Laurent (YSL).

Louboutin’s posh heels, worn by trendy celebrities and businesswomen alike, are known exclusively for the red colored bottom of the shoe. In court, the designer will argue that the red-colored soles serve only to identify the Louboutin brand, much like Tiffany’s robin’s-egg blue packaging for its pricey jewelry. Consequently, Tiffany’s filed an amicus brief on behalf of Louboutin’s interpretation of color and trademarks.

When the case was initially presented to a judge, defendant YSL countered that Louboutin admittedly had aesthetic reasons for lacquering the soles of his shoes red. YSL’s attorneys therefore maintained that Louboutin is not entitled to a trademark for the red soles, citing the United States Supreme Court’s 1995 decision in Qualitex v. Jacobson Products. In that particular case, the court ruled that a color can only be trademarked if it “can act as a symbol that distinguishes a firm’s goods and identifies their source, without serving any other significant function.” Furthermore, according to YSL’s defense, since the red color serves only as an aesthetic function as in Louboutin’s shoes, it cannot be trademarked.

In court last week, YSL’s interpretation of trademark law got endorsements from eleven law school professors, who filed an amicus brief in support. A statement from the professors’ brief read: “This court should recognize that the shadow cast by a trademark in a single color on a fashion item creates enormous uncertainty for other designers and should regard claims of single-color trademarks in fashion with considerable skepticism.” This opinion was also shared by Manhattan federal court Judge Victor Marrero, who in August denied Louboutin’s request for an injunction to bar all of YSL’s red-sole shoes.

This is definitely not a slam-dunk case. However, fashionistas around the world would probably agree that Louboutin’s red soles distinguishes the shoes as high-fashion, high-priced luxury items that few can afford. In Louboutin’s defense, many women would contend that if someone sees the red soles on your heels, they will know who you’re wearing.

Oral arguments for the case will be presented at 2:00 on January 24.

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