This article was originally posted in the What’s Happening, Myron! online magazine.
Fashion Law Trends
Pamela Williams Kelly, Entertainment Attorney
Welcome to Fashion Law Trends—a column that goes behind the glitz and glamour of the runway to the laws that can make or break a style trend.
This week we start with an irresistible splurge in a woman’s closet—shoes! If I say high-heeled shoes with red-soles, what comes to mind? Did you think of Christian Louboutin? Louboutin made fashion history when his lacquered red soles hit the runway. Not only does the shoe reflect high style, it also reflects privilege since a pair of Louboutin shoes can cost as much as $1,000.
Now, here’s the fashion law part. Louboutin was granted a trademark for its red sole in 2008 by the United States Patent and Trademark Office. A trademark is a distinctive symbol or name that associates a product with a particular company. If another company produces a similar good for sale, the trademark owner has the right to enforce its trademark through a trademark infringement action in federal court. Yves Saint Laurent is challenging that trademark since it has started selling its own line of red-soled shoes.
Usually, this would be an easy fight since Louboutin possessed a trademark. But the U.S. District Court is seeing “red” in this fashion case. While a color may be granted trademark protection if it clearly identifies a particular brand, color alone is not granted protection for a pure “functional” role. In court, Louboutin stated that he used the color red because it was “sexy.” That was not a good answer because it did not position the trademark red color as a source brand for Louboutin shoes.
The final word on trademark infringement case has not been reached yet. But, so far, Louboutin is not doing well in its bid to be the only red-soled shoe around.