Fashion designers often have a unique distinction on their products- a look or style that they are known for- and Christian Louboutin (pronounced LOU-EEE-BOO-TAWWWWN) is no exception. For over 25 years Louboutin has made the bottoms of his fancy dress shoes an unmistakable vivid red. Now there is question of whether or not he can trademark the color. His company had even trademarked “the color red (Pantone 18 1663TP) applied to the sole of a shoe” (like the shoes in the picture above).
In 2012, his company filed a lawsuit against Dutch company Van Haren that had started selling high heels with red soles similar to his. Louboutin filed the lawsuit claiming that the shoes “infringed on his brand’s trademark for footwear”, (meaning the red soles on fancy dress shoes).
The other company (Van Hare) was forced to stop selling their red-soled shoes after Louboutin sued them for trademark infringement. However the brand’s lawyers weren’t having it, and fought the case until it reached the European Court of Justice (meaning the case was heard by several lower courts first).
Under European Union law, shapes typically cannot be trademarked (so the design of a shoe might not be able to be legally protected, but a specific logo of a company still could be). According to a court official, Louboutin’s red soles are part of a shape (and not something like a logo). Because of the rules about shapes, his request for trademark protection could be refused.
Fashion designers fighting over colors in court might seem very European, but America has seen its share of legal battles over colors too! For example, in 2014 the United States Federal Court decided that AT&T was no longer allowed to use certain shades of pink after a lawsuit with T-Mobile.
AT&T had come out with a new service called Aio wireless that used a shade of plum in all of its advertising. While it wasn’t the exact same color as T-Mobile’s better-known magenta, it was close enough for a lawsuit to be filed by T-Mobile (and won).
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Questions:
1) No matter how the court case turned out, why should Louboutin be able or unable to trademark soles of shoes with a specific shade of red?
2) What if Nike made a sweet pair of red-soled running kicks: Should Louboutin be able to sue Nike if they did that – why or why not?
3) After considering & answering #2’s question about Nike shoes, answer this: What if Nike released a pair of red-soled running kicks and called them “Louie’s Batons” – as a way of saying Louboutin is wrong: almost like a protest to the lawsuit in Europe. If they did that, why should they be allowed or not be allowed to sell the shoe in those circumstances?
Be sure to provide full explanations for each of your answers. For more details, you can read the article this piece was sourced from here:
https://www.nytimes.com/2018/02/06/business/christian-louboutin-shoes-red-trademark.html
Contributed by – J. Plummer
