The parties might well commission surveys and make lots of other arguments about the connection in the public’s mind between red soles and Louboutin. Patent and Trademark Office for “a lacquered red sole” on “women’s high fashion designer footwear,” which means a court will presume its validity. Plus, Louboutin secured a registration from the U.S. All the friends in my informal poll recognized the red soles as a unique Louboutin feature (and not just from reading a recent Lauren Collins New Yorker profile that called them “a marketing gimmick that renders an otherwise indistinguishable product instantly recognizable”). U.P.S.’ brown trucks and Owens-Corning’s pink insulation both enjoy trademark protection.īut the Court also noted that competitors may still copy colors if they are “functional”-that is, if they are important to the way a product works beyond merely the reputation they bestow.įor Louboutin to prevail, then, it will have to show three things: that consumers associate the red sole with Louboutin shoes (that’s where his celebrity clients come in) that they might be confused by an imitator and that the red soles are not “functional”-which is to say, the basic function of a competing product isn’t hampered by not copying the color. A color, according to the ruling, may serve as a trademark provided it fulfills the same purpose as a more traditional trademark such as a brand name or a logo: to identify a particular provider. In one much more pedestrian case, the Supreme Court ruled explicitly that Qualitex Co., a maker of dry-cleaning equipment, could “own” a certain puke-green color. In fact there’s a reason all of this makes it into the court documents, and not just the news reports hoping to take what might otherwise be a rather dry intellectual property dispute and sex it up with some boldface names. Louboutins were even the title subject of a terrible-yet-catchy Jennifer Lopez song in which she mentions the red soles alongside her own iconic posterior: I’m throwing on my Louboutins / Watch these red bottoms / And the back of my jeans / Watch me go / Bye baby. Many of those were on famous feet: the complaint makes so much use of celebrities and models wearing Louboutin’s shoes that it reads in places more like a Page Six item than a legal document.Īnd in fashion’s other, fantasy universe they’re similarly ubiquitous among the-eh, well-heeled: Carrie Bradshaw and Barbie both have pairs in their fictional closets. The legend, and now the lawsuit, has it that almost 20 years ago Louboutin first kicked a pair of shoes up a notch by painting the soles red with nail polish they’ve appeared on every shoe he’s sold in the United States since. Louboutins are well known to fashion gurus, famous for their insanely high heels, fanciful designs, and bright red undersoles. How does all this apply to the Louboutin case? First, some background. How many times has Tim Gunn arched his eyebrows at a “Project Runway” contestant and singsonged that their projects looked awfully similar to some famous designer’s collection or that they need a course in fashion history? Among serious designers, “derivative” is an insult almost worse than “cheap-looking.” Of course blatant copycats don’t have credibility. Fast-moving trends reduce the life cycle of the product so that people feel the need to refresh their wardrobes constantly-and keep the fashion houses in business. When a designer introduces a new trick, if it strikes a chord then every competitor makes their own version and every stylish customer wants it. Speed, change, and imitation are the hallmarks of the business. This is a realm in which clothes from last season are no longer valuable. Unlike a new drug or pop single, where copies just displace the original and steal away potential customers, much of the copying in fashion fuels the whole industry. Senator Chuck Schumer (disclosure: my former boss) sponsored a bill last year to create a special limited three-year copyright for certain unique fashion designs, and while it had some supporters, others argued persuasively that the lack of fashion protection is a good thing. Patents are for inventions, copyrights for creative works, and fashion traditionally falls outside both definitions. They aren’t usually eligible for patents or copyrights. On the whole, fashion designs get very little intellectual property protection. In fact, I think the law fundamentally supports all three reactions, partly.
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