WHAT DO YOU THINK??
The battle of the red sole continues.
Yves Saint Laurent has won the battle, but the war remains.
Federal judge, Victor Marrero, has ruled that even though Christian Louboutin has made a recognizable shoe, this is not enough to claim a trademark protection. Therefore, the judge is allowing YSL to continue selling its red bottom shoes until Louboutin’s and YSL’s trademark case reaches a final verdict.
‘Because in the fashion industry colour serves ornamental and aesthetic functions vital to robust competition, 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 public recognition in the market to have acquired secondary meaning.’
Christian Louboutin’s lawyer, Harley Lewin of McCarter & English LLP, told The Cut:
‘We are profoundly disappointed in Judge Marrero’s decision. Although we are still studying it, it appears he has decided that in the fashion industry, one colour should not serve as a trademark. While he acknowledges the fashion industry at large has recognised the Louboutin Red Sole as a trademark source indicator, he has concluded that the fashion industry needs to use colours on outsoles without restriction and this, despite a mountain of evidence to the contrary, including a recent decision by the 2nd Panel of Appeal at OAMI in the EU that concluded exactly the opposite, calling Mr. Louboutin’s adoption of the bright red outsole brilliant. We will evaluate all the alternatives available in the days to come.’
Yves Saint Laurent’s lawyer, David Bernstein of Debevoise & Plimpton LLP, issued a statement saying,
‘We’re gratified that Judge Marrero has agreed with YSL that no designer should be allowed to monopolise a single colour for an article of apparel. As Judge Marrero indicated, YSL designers are artists and, like other artists, they should have the right to use the full palette of colours in designing their fashions for each season.
As YSL has noted from the start, this is a trademark registration that never should have issued, and we are pleased that Judge Marrero has agreed that the registration likely should be cancelled.’
Judge Marrero has given YSL the authority to continue selling its red soles but, both YSL and Louboutin are ordered back to court for the final verdict in the battle of the red soles.