September 6, 2012

The law-and-fashion news.

"Designer Christian Louboutin can claim trademark protection for the red outsole on his women's shoes, but not if the rest of the shoe is also red, a federal appellate panel ruled yesterday, allowing rival Yves Saint-Laurent to continue selling an entirely red shoe."
Louboutin's iconic high-end, red-soled shoes, introduced in 1992, have been spotted on celebrities including Sarah Jessica Parker, Victoria Beckham and Rihanna. The shoes sell for up to $1,000 a pair.

YSL's shoes are entirely red, including their outsoles, and are part of a line of similarly monochrome shoes, also in purple, green and yellow....

[The district judge had said] that a color, being an essential element of fashion design, could not be trademarked, despite the strong connection in the public mind between red soles and Louboutins. The judge compared the suit to Pablo Picasso suing Claude Monet to assert a trademark for a particular shade of blue....

However, the [appellate] panel found that the "evidentiary record further demonstrates that the Louboutin mark is closely associated with contrast," not just the red color, and that the trademark must be narrowed to cover only situations where the red sole of a shoe contrasts with a differently colored upper part.
So maybe you can have a trademark in a particular color. (I note that Tiffany, which has a particular shade of blue, filed an amicus brief supporting Louboutin.) But Louboutin didn't own red or even red soles. What distinctively said Louboutin was red soles contrasting to the rest of the shoe.

The Louboutin side of the argument thus won something important upsetting the trial judge's per se rule against fashion-industry trademarks in a color.

10 comments:

ricpic said...

The only tag that genuinely applies to this post and doesn't appear is STATUS.

Matthew Sablan said...

... so what you're saying is that they can have rouge individualism.

The Crack Emcee said...

Louboutin's iconic high-end, red-soled shoes, introduced in 1992, have been spotted on celebrities including Sarah Jessica Parker, Victoria Beckham and Rihanna. The shoes sell for up to $1,000 a pair.

Shouldn't someone mention women are stupid?

Wait - I just did.

Carry on,...

rhhardin said...

It's supposed to be, in fashion, that only the label can be protected.

Everything else can be copied.

Evidence Johanna Blakley econtalk.org

The judge's reasoning is wrong.

BarryD said...

What's a Designer Christian? Some new religion in the 'burbs?

cubanbob said...

Ann as a law professor this is an interesting IP law recession. Since Laboutin did not invent the color red or the concept of colored soles and different color uppers, they were in the industry long before him, I don't see how the SCOTUS can uphold this. There is no unique creation or expression here, something that copyrights, trademarks and patents are predicated on. A Coca Cola can has a unique combination of colors and stylistic lettering. The company created this. What Laboutin did was take concepts already in the public domain and marketed them. I can't imaging the supreme court upholding this.

While not directly comparable there is a copyright case , forever 21 vs express decided in the middle district of CA that stated that while one can get a registration on a public domain item the underlying material isn't copyright protected so there is no actual infrigement. That hasn't yet been affirmed by the circuit court but if it is then the supreme court will have to untangle this mess. It would appear that Laboutin really did do was get a trademark for something that is at best a copyright. And an invalid one at that.

Rusty said...

No. Really.
WTFC

wyo sis said...

I occasionally see information on the internet about how to paint the soles of your shoes. Red is a favorite.

Bima said...

Owens-Corning owns a trademark for the color pink for insulation. This has been through the courts.

mikee said...

I had a pair of running shoes in 1977 that had red soles. They were not Louboutin designed.