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...


Reader Comments (rss)

(Flattened / Threaded)

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    el_porko, Sep 6th, 2012 @ 4:54pm

    Simplicity plus...

    These shoe sole colours are; Amaranth, Auburn, Burgundy, Cardinal, Carmine, Cerise, Chestnut, Crimson, Dark red, Electric crimson, Fire brick, Flame, Folly, Fuchsia, Lust, Magenta, Maroon, Raspberry... well, you get the point.

     

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    Anonymous Coward, Sep 6th, 2012 @ 5:10pm

    Quick lets sew up (or rather get small Indian or Chinese children to sew them) the any other coloured soles with different colour tops and when the next fashion designer wishes to go with electric blue or toxic green, we can sue them for everything that they coulda woulda shoulda been worth.

     

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    DogBreath, Sep 6th, 2012 @ 5:16pm

    Just another way of playing monopoly

    So all those high-priced basketball shoes with red soles are going to be sued for trademark infringement now? (Because that is where the money is, based on their obscene prices.)

     

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    Chronno S. Trigger (profile), Sep 6th, 2012 @ 5:21pm

    So how red are we talking about here? Would #FF0000 violate, would #FE0000 not?

     

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    gorehound (profile), Sep 6th, 2012 @ 6:27pm

    I am going to paint my motherfuckin shoes motherfuckin Red Right Now !
    Gonna go get my spray paint can now.

     

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    Jeffrey Nonken (profile), Sep 6th, 2012 @ 6:41pm

    So. Is the trademark on a pure red color? Or anything with red in it? Can I give my shoes an orange sole?

    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...

     

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    Anonymous Coward, Sep 6th, 2012 @ 8:07pm

    Prior Art

    I'm pretty sure that my Elvis Presley - look-alike white suede shoes that I had when I was 8 had red soles.

    Eat your heart out!

     

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    Anonymous Coward, Sep 6th, 2012 @ 9:51pm

    well, if apple can own rounded corners and glass screens, they can own the color red on a shoe

     

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    DataShade (profile), Sep 7th, 2012 @ 12:44am

    he court goes through the caselaw history on colors as trademark, and the question of whether or not a color is "functional" or not


    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.

     

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    That Anonymous Coward (profile), Sep 7th, 2012 @ 1:37am

    Because having the bottom of your feet look like a baboons ass is sexy... and some women complain men don't take them seriously. How can they when on the inside they are stifling the laughter at your baboon ass feet.

     

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    Anonymous Coward, Sep 7th, 2012 @ 5:58am

    Fifty Shades of Red?

    As several commenters have noted, there are many shades of red. Does the court specify a specific Pantone shade of red, or is it all shades of red, or is it like pornography, "I'll know it's 'that red' when I see it."

     

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    BentFranklin (profile), Sep 7th, 2012 @ 6:32am

    Once every color is locked up, will anyone else be allowed to make shoes?

     

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    Martin Thomas (profile), Sep 7th, 2012 @ 7:32am

    People who make horror films will have to tread carefully.

     

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    Jasmine Charter, Sep 7th, 2012 @ 8:13am

    Red?

    I'm trademarking Crimson soled shoes right now!

    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!

     

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    Rodd, Sep 7th, 2012 @ 9:27am

    Red!Red! I want red, there's no substitute for red.

    Sammy Hagar is now offically the Crimson Rocker!

    Red is dead!!!

     

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    nasch (profile), Sep 9th, 2012 @ 8:44am

    soles

    If they successfully got a trademark on red topped shoes with a different color sole, I think that would be universally seen as ridiculous. What makes the reverse so much more acceptable?

     

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