Louboutin goes head to head to fight for the red!
The biggest debate in the high fashion industry that’s currently causing a buzz is whether or not a company has the right to trademark a colour, and whether or not this will lead to further lawsuits throughout the fashion industry. Christian Louboutin, whose luxury, red-soled shoes are worn by celebrities such as Victoria Beckham, Kate Moss and Sarah Jessica Parker, started legal proceedings against Yves Saint Lauren, back in April, alleging that the company was selling shoes with red soles that are identical to its own, and claiming that he was the first designer to develop the idea of having red soles on women's shoes. YSL struck back, stating that the red outsoles on shoes are a commonly used design element used by designers everywhere dating as far back as the 1600’s with shoes worn by King Louis XIV.
Unfortunately for Louboutin A Manhattan federal judge denied the shoemaker with the right to trademark the red sole. The French shoe-designer was suing over four particular shoes in the YSL 2011 collection: the Tribute, Tribtoo, Palais and Woodstock models. Which all sport bright-red outsoles.
According to the August 10th article found in The Hollywood Reporter; the judge stated, "Louboutin's claim raises the specter of fashion wars. If Louboutin owns Chinese Red for the outsole of high fashion women’s shoes, another designer can just as well stake out a claim for exclusive use of another shade of red, or indeed even Louboutin’s color, for the insole, while yet another could, like the world colonizers of eras past dividing conquered territories and markets, plant its flag on the entire heel for its Chinese Red."
Some can argue that if Louboutin gain rights to the red outsole that does that mean other designers can start to gain rights for a certain colour button? Or an inner jacket lining? Where does the line get drawn on what designers have the right to be trademarked? "Awarding one participant in the designer shoe market a monopoly on the color red would impermissibly hinder competition among other participants," the judge wrote. He said it would be as if Picasso had sued Monet, saying he painted his water lilies with a distinctive indigo that Picasso used on his images of water. The defense believed that Louboutin's ownership claim to a red sole would harm competition not only in high fashion shoes, but potentially in the markets for other fashion articles as well, putting designers of dresses, coats, bags, hats and gloves in fear of lawsuits.
Harley Irwin Lewin, a lawyer for Louboutin, said he was disappointed with the ruling and believes it was contrary to trademark law. As words found in the Augusts 11th article in The Huffington Post, "He has decided that in the fashion industry, people shouldn't own a trademark that consists of a single colour regardless of its use and regardless of the fact the trademark has achieved trademark status with the public," Lewin said. "We made a point of saying it isn't on an article of fashion. It's on the bottom of a shoe." Jyotin Hamid, a lawyer for Yves Saint Laurent, said the company was pleased with the ruling. "No designer should be able to monopolize a color in fashion," He said the company looks forward to continuing to manufacture red soled shoes, which it has been doing since the 1970s.
The judge said the trademark was unlikely to survive legal challenges because in the fashion industry colour serves ornamental and aesthetic functions vital to strong competition. However he did acknowledged the enormous success Louboutin has achieved since the designer began in 1992 to apply glossy red to the outsoles of his women's shoes, beginning with red nail polish he applied to the black soles of a pair of women's shoes. At prices up to $1,000 a pair, the shoes became a favorite of celebrities, causing the red outsole to become closely associated with the Louboutin name and leading even Yves Saint Laurent to acknowledge its success. Shoe designers that offer to a lower price range, know that customers want it to look like they are purchasing designer shoes without paying the large sum. By putting a red sole on a shoe, the woman can look and feel like she is wearing the exclusive Louboutin, but is that far to him that people are wearing knock offs and he’s not getting any of the profit?
However the case is still not closed, just recently Women's Wear Daily reports that jewellers, Tiffany & Co. have filed a brief supporting Louboutin's claim that a colour can, and should be trademarked. Tiffany filed a trademark to protect their signature blue packaging back in 1998 and fear that if the judge's decision from the Louboutin case is upheld, it will pave the way for their own trademark to be revoked. In an Octobers 27 issue in Market Week it states that Tania Clark who is a trade mark attorney at law firm Withers & Rogers, believes Tiffany will be hoping other designer brands lend their support because the initial ruling could leave them open to their design features being copied. She says “Tiffany clearly has a vested interest in the use of colour and views it as an important part of its own brand identity. The jeweler is obviously concerned that if Louboutin loses its legal battle with YSL, it would leave the way open for rivals to infringe its existing trade mark rights by copying its distinctive blue packaging design.”
So even though the jury is out stating the Red outsole cannot be trademarked, we clearly will not be seeing the end of it until there is a win. Now that Tiffany’s have spoken up will we be seeing other designers standup such as Luis Vuitton on its signature brown purses and luggage’s, or Channel for its classis black on white. Could this really be the start of trademark war among all designers?