Red soles that ‘pop’ – Louboutin wins trade mark protection

On 5 September 2012, a New York Appeals Court finally recognised what fashion savvy women have always known – that the red soles of Christian Louboutin shoes identify and distinguish the Louboutin brand. The New York Court accepted extensive evidence that Louboutin’s red soles had acquired a secondary meaning amongst fashionistas and that a single colour may, in special circumstances, qualify as a trade mark: US Court of Appeal for Second Circuit: Christian Louboutin SA v YSL America Inc No 11-330-cv.

We have blogged about this dispute previously here and here. At first instance, District Court Judge Marrero held that Louboutin’s red sole trade mark was not likely to be enforceable because a single colour could never serve as a trade mark in the fashion industry. However, this latest decision reverses the lower court’s ruling, with the Appeals court holding that Louboutin’s distinctive red soles are entitled to trademark protection – but only when the rest of the shoe is painted in a contrasting colour. Shoes that are lacquered all red are not protected, and so in this case, Yves Saint Laurent’s monochrome red shoes were held not to infringe Louboutin’s trade mark. In a quote which sounded more like it belonged in Vogue Magazine, the Appeals court said, “it is the contrast between the sole and the upper that causes the sole to ‘pop’ and to distinguish its creator”. I don’t think Carrie Bradshaw could have said it better!