Appeals Court Says That You Can Trademark Red Soled Shoes
from the the-man-with-one-trademarked-shoe dept
Last year, we wrote about how high end fashion shoe designer Christian Louboutin* had lost a trademark lawsuit concerning the company's attempt to block other shoe makers from making high heel shoes with red soles. Louboutin is apparently famous for its red soled shoes, but the judge in the case pointed out that this was silly and the company never should have received the trademark in the first place:“Because in the fashion industry color serves ornamental and aesthetic functions vital to robust competition,” Judge Marrero ruled, “the court finds that Louboutin is unlikely to be able to prove that its red outsole brand is entitled to trademark protection, even if it has gained enough protection in the market to have secondary meaning.”Unfortunately, on appeal, the 2nd Circuit has disagreed and said that the lower court erred -- though with a specific condition. It claims that Louboutin's red soled trademark is legitimate if and only if it's on shoes with a different color. If the shoe itself is completely red, then others can have a red sole (which was the situation in this particular lawsuit). Still, this seems troubling, as it seems to flat out limit reasonable design choices that other shoemakers might choose to make. The court goes through the caselaw history on colors as trademark, and the question of whether or not a color is "functional" or not (trademarks can't be functional). While the court admits that "aesthetic function and branding success can sometimes be difficult to distinguish" you'd think it would be careful not to overprotect, but the court comes down on the other side here, mainly because it says Louboutin's red soles have created a "distinctive" mark that identifies such shoes as Louboutin's. While I can see where the argument comes from, precluding other designers from offering red soled shoes seems pretty excessive.
Rebecca Tushnet does her customarily comprehensive breakdown of the insane parts of the decision, pointing out that "it's notable just how many contradictions the court has to swallow" to come out with the ruling it does. It basically sidesteps key questions, dances around the caselaw, and figures out a way to back into the conclusion it was comfortable with issuing, while avoiding some larger questions. As a result it's a bit of a mess, but shoemakers be forewarned: apparently red soles on other color shoes is the sole domain of one shoemaker.
* As we wrote in our last post on this case: for reasons that go way beyond my understanding, it seems that one of (if not) the largest comment spammers we get are people trying to sell (probably counterfeit) Christian Louboutin shoes. Talk about bad targeting by spammers. This is not exactly a Louboutin audience. However, we get hundreds of such comments a day. Our spam filters use a few heuristics to determine what is spam and what is not and while it's not definite, there's at least a high likelihood that if you mention "Louboutin" in your comment that it will be held by the spam filter. We'll endeavor to free this as quickly as possible. Or just don't mention it in your comment at all, and hopefully it'll get through...
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: color trademarks, red, red soles, shoes, trademark
Companies: christian louboutin
Reader Comments
Subscribe: RSS
View by: Time | Thread
Simplicity plus...
[ link to this | view in thread ]
[ link to this | view in thread ]
Just another way of playing monopoly
[ link to this | view in thread ]
[ link to this | view in thread ]
A touch of green or blue?
[ link to this | view in thread ]
Gonna go get my spray paint can now.
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Yes, that's silly. Hah hah! How about red-orange?
Hmm. What if I mix in a little more red... then a little more... how close to pure red can I get before I'm in violation?
What happens when all three primary colors have been trademarked? How about the secondary colors? Exactly how much of the color wheel has been locked up?
I want a DEFINITIVE answer. "Red" can mean so many things...
[ link to this | view in thread ]
Re:
So much for me being clever. :)
[ link to this | view in thread ]
Re:
I'm trademarking blue. Guess we're one step closer to finding out!
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Prior Art
Eat your heart out!
[ link to this | view in thread ]
[ link to this | view in thread ]
The way it was explained to me many years ago is that not only is the Louboutin red not functional, it's dysfunctional; it actually makes scuffs and minor sole damage more obvious, can leave marks on certain surfaces, and (the finish to make the red more obvious, not the red itself) can make you more likely to slip.
And this is on purpose. It's deliberately wasteful extravagance, conspicuous consumption.
Dunno ... maybe that pushes it so far down into non-functionality that it becomes functional again.
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Re:
COME AT ME BRO!
[ link to this | view in thread ]
Fifty Shades of Red?
[ link to this | view in thread ]
[ link to this | view in thread ]
[ link to this | view in thread ]
Red?
And how DARE anyone make crimson soled shoes... and if those Louboutin shoes get soiled and the red appears to be crimson... I'm cashing in!
So... if I buy black soled shoes and set in red paint... am I violating trademark?
STOP... THE... INSANITY!
[ link to this | view in thread ]
Red!Red! I want red, there's no substitute for red.
Red is dead!!!
[ link to this | view in thread ]
soles
[ link to this | view in thread ]