I’m thrilled to have served as a facilitator this past week for an Intellectual Property Roundtable discussion at the Tower Club in Dallas regarding the recent case Louboutin vs. YSL. You may remember I previously posted about this lawsuit wherein Christian Louboutin sued fashion house Yves Saint Laurent over over YSL’s red-soled shoes. Louboutin claimed that YSL’s use of an outer red sole on its shoes infringed Louboutin’s trademark rights.
The U.S. District Court held that a single color couldn’t serve as a trademark because it would be unfair to prevent other designers from being able to use the color red, and therefore, YSL could keep selling its red-soled shoes. This didn’t sit well with Louboutin so it appealed to a higher court. The federal Court of Appeals disagreed with the District Court on some things, but affirmed some other points.
The Court of Appeals decided that a single color could actually serve as a trademark, and that Louboutin’s red outer sole was a protected trademark.
However, the Court of Appeals held that Louboutin had trademark protection over the red outer sole only so long as the upper part of the shoe is a different color. In other words, Louboutin could have trademark rights where a black shoe had a red outer sole, but not for a red shoe with a red outer sole.
So Louboutin now has on record by a Court of Appeals that its red outer sole is indeed a protected trademark, and YSL can keep selling its red shoes with the red outer soles. Seems to be a win-win situation, though I’m not so sure.
What do you all think?
1) If you were shopping for Louboutin heels, would you confuse these red-soled YSL heels as Louboutins?
2) Upon seeing a red sole, would you pick up the YSL heels expecting to see “Louboutin” scrawled on the insole?
3) Finally, once you saw that the shoes were actually made by YSL, would you A) still buy them or B) continue looking for Louboutins? In either case, why? Please leave a comment; I would love to hear from you!
One more thing: I saw on TV this morning a product called “Shoe Flavors.” Basically, it’s a kit that enables you to embellish your shoes with crystals and even paint the outer sole a different color, including white, sparkle silver, and yes, red. The website boasts:
“With Shoe Flavors you can create shoes unique to your style that no one in the world can own! Stop searching for that perfect pair of shoes – start making the shoes that are perfect for you! The Shoe Flavors Designer Kit® contains EVERYTHING you need to revamp your shoes’ style so they’re runway ready.”