Red-heeled and Signature-soled – Christian Louboutin Lost His Trademark Infringement Case in NY

French designer Christian Louboutin is very unhappy with a recent New York Court decision. In this ruling, Judge Victor Marrero of the Southern District of New York stated that Louboutin cannot block Yves Saint Laurent from copying its distinctive red soles. The trademark that Christian Louboutin obtained in 2008 for “lacquered red soles” and used in women’s high fashion designer footwear is “overly broad” and therefore doesn’t offer protection.

The court rejected Louboutin’s request to forbid YSL from selling more red-soled shoes while the case was pending.  The judge found it unlikely that Louboutin would succeed with his claims for trademark infringement and unfair competition. 

The ruling stated that trademarks can be obtained for fashion purposes for a single color but only if the color is used in a distinct pattern or combination of shades. (E.g., Louis Vuitton’s LV monogram or Burberry’s signature beige plaid). But a fashion designer cannot claim trademark protection for a single shade such as the color red. 

Louboutin’s claim failed on two important points:

1. The precise color red is not identified in the registration
2. The trademark does not specify what type of lacquered coating would be protected and which type of  high fashion shoe.

 The judge also ruled that color is a basic element of fashion and therefore cannot be claimed exclusively by an individual designer.  “Awarding one participant in the designer shoe market a monopoly on the color red,” the court found,”would impermissibly hinder competition among other participants.” 

It would be, the court analogized, like depriving a painter from “employing a color intended to convey a basic concept because another painter, while using that shade as an expressive feature of a similar work, also staked out a claim to it as a trademark in that context.” 

The court went on to stated that if the trademark would be upheld, it would trigger endless fashion wars and hinder the legitimate competition in high fashion designer shoes. 

Louboutin is not the first one to use red in footwear. Aristocrats in the 1600s sported red-heeled shoes. A portrait of Charles II of England from 1675 shows him swearing shoes with red heels as well as red soles. Louis XIV of France made them the “it” item among Europe’s monarchs. He even issued an edict saying that only members of the nobility by birth were allowed to wear them.

Recently, red soles have brought glamor and sex appeal to footwear. Valentino Garavani  has been producing red-heeled shoes since 1969. He uses orange-like rouge that is referred to as “Valentino Red.”  In the 1970s, Yves Saint Laurent started producing the monochrome shoe, which is entirely one color — from the leather upper to the inside to the heel and the sole – in purple, blue and red. Charles Jourdan (Louboutin was his apprentice in the ’80s) also painted the soles of his shoes red. The concept is therefore far from new or innovative.

Christian Louboutin is strongly advised not the appeal. Instead, he might opt for a signature red color and trademark it as “Louboutin Red”.

How The SNOPA Bill Can Work For You

You might have heard about the SNOPA (Social Networking Online Protection Act) Bill. It addresses the issue of employers asking (potential) employees for their passwords to social media, such as Facebook.

Once passed, any prospective employer could face a $10,000 civil penalty once access to social networking accounts is asked from a (potential) employee. Schools and universities would also be banned from demanding passwords as part of disciplinary or enrollment processes.
The Bill comes hot on the heels of a series of incidents in which job candidates have been told they have to hand over passwords as part of the interview process.

As Eliot Engel, one of the Democratic Congressman who introduced SNOPA put it: “there have been countless examples of employers requiring an applicant to divulge their user name and password as part of the hiring process.”

As well as demands for passwords, this Bill would also ban “other means of accessing a private account”. This would cover demands for “friend” status.

Facebook (NASDAQ:FB) supports SNOPA. The company has threatened to sue employers who demand passwords. Facebook’s privacy chief Erin Egan stated that: “as a user, you shouldn’t be forced to share your private information and communications just to get a job. We’ll take action to protect the privacy and security of our users, whether by engaging policymakers or, where appropriate, by initiating legal action.”

Unfortunately, the number of cases in the United States and elsewhere has been rising over during the past few years. When faced with the demand for divulging login details to social media, the job applicant or employee has two options: (a) to comply, or (b) to resign or withdraw from a job application. Due to the current state of the economy, taking the moral high ground is often a luxury the job seeker cannot effort…..

European employees and job applicants are faced with the same predicament as their peers across The Pond. They are also asked for their Facebook passwords by (potential) employers. According to legal experts, employers are indeed allowed to at least asking the question.
But don’t despair – legislation is kicking in soon!