We quickly identify the Tiffany blue box, Burberry’s plaid and Louis Vuitton’s monogram. Christian Louboutin went through the proper channels when they won a trademark for its red soles with the US Patent and Trademark office in 2008. That’s now being challenged.
Earlier this year, they filed suit against PPR SA’s Yves Saint Laurent, alleging some of its competitor’s shoes featured soles in shades of red too close to its own. Last week, a U.S. federal judge denied their request, saying Louboutin could not likely prove its use of the color deserved legal trademark protection. In the judge’s opinion, “Because in the fashion industry color serves ornamental and aesthetic functions vital to robust competition, the court finds that Louboutin in unlikely to be able to prove that its red outsole brand is entitled to trademark protection.” YSL is happy about the decision. “No designer should ever be allowed to monopolize a color.”
Color is trademarked in industrial uses, for instance pink fiberglass insulation to distinguish a product. In fashion, it gets trickier where color services a fundamental purpose. Observers hope this case goes to trial as this is “the most interesting case in fashion intellectual property that has come down in the past couple of years,” according to Susan Scafidi, academic director of the Fashion Law Institute at Fordham Law School.
I side with Louboutin and feel the judge doesn’t realize the big picture Louboutin is fighting here. Fashion houses work hard to establish an identity. Familiarizing yourself with brands, we can immediately recognize a Valentino bag, Tod, Prada, Kate Spade shoes. Louboutin did the right thing in 2008, and if competitors want to trademark a signature sole, chose another color and go through the hoops. The WSJ states “ Some in the industry say the recent development just raises more nettlesome questions for designers trying to have some measure of protection for things they consider fashion signatures.”
The downside for the consumer? Brand identity give us quick reference to what price-point but more importantly, fit and comfort for our feet. While I use this reference for clothing, the styles and trends of the season present more variables in selecting brands we know might fit our bodies. With shoes, there are typically brands whose styles just don’t work for our feet. Louboutin went through the proper channels in trademarking their brand in 2008, and I hope this won’t be thrown to the wayside.
So consumers beware; until this is settled, the red-sole might not be what you think it is.
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