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Red Soled Shoes

February 12, 2012

Christian Louboutin holds a federal trademark registration on its red soled shoes. The red soles are (at least mostly) unique to this shoe line, and allow shoe enthusiasts to identify the shoes as Louboutin’s. When Yves Saint Laurent (YSL) started selling red soled shoes too, Louboutin sued, initially moving for a preliminary injunction to prevent sale of the shoes. In August, a federal judge denied the motion (Text Here). Recently, a 2d Circuit appeals board heard oral arguments in Louboutin v. Yves Saint Laurent America appealing a denial of a preliminary injunction.

The district court Judge’s decision raises a number of interesting issues (as well as an epic “parade of horribles” tirade). When I first heard about the case, I thought it was a slam dunk in favor of Louboutin. After reading the decision however, I am not sure what side I stand on.

On one hand, people do identify red soled shoes with Louboutin. On the other hand, there is evidence that the red sole is a “functional” color choice, and thus non-deserving of trademark protection. Also the judge draws a distinction between color in the fashion industry and other industries. It is difficult to say whether this distinction is proper or not.

What stands out to me is the discussion on pages 19 and 20 where Mr. Louboutin is quoted talking about how great the red is, “sexy” etc. This admission may be damning for Louboutin’s case, as it strongly leads the Judge to suspect the color is “functional.” But is the “functional” prohibition so broad that anything but a completely arbitrary color selection renders the color un-trademarkable? It seems that is the direction that this court and others are leaning.

It seems to me that any color must be chosen for some reason. Owens Corning pink could indicate warmth, making it functional. Qualtiex green could be considered “clean” and therefore functional. Is the key then, for a color trademark holder to just keep mum as to why they picked the color? If that ends up being the case, it seems like a silly rule.

I look forward to finding where the line is drawn.  We’ll soon find out what the appeals court decides. The final outcome of this case could potentially be a game changer in the color trademark world. In any event the battle between Louboutin and YSL should be fun to watch.

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