Christian Louboutin’s Red Soles: A Harvard Law Professor Weighs In
Christian Louboutin's Bianca pump ... complete with red sole
The ongoing legal battle between Christian Louboutin and Yves Saint Laurent was sparked when the latter released a pair of shoes with a red sole—Christian Louboutin’s self-proclaimed signature.
And the case is far from over—a federal appellate court will hear arguments this week—and the evidence is far from black and white.
In an effort to explain just what (if any) exclusive rights Louboutin may hold to scarlet-heeled shoes, the New York Times tapped Harvard law professor Jeannie Suk to help get to the bottom of things.
So, can you trademark a color?
“If the color is a useful feature in a product—green for farm equipment or yellow for banana-flavored gum—it can’t be a trademark, even if it is source-identifying, because excluding competitors from a useful feature would be anti-competitive,” wrote Suk in the Times.
“Applying this logic, the judge in the Louboutin case suggested that particularly in fashion, a single color could not be a trademark. The judge reasoned that in fashion, color is always ‘functional’—meaning that color is a useful aesthetic feature to which all designers should have access.”
Fashion or function? It’s hard to say exactly which category that contentious sole falls under. But if a judge rules it’s the latter, this fight may not end in Louboutin's favor.
“Trademark law does not protect design features that are ‘functional,’ the meaning of which, it turns out, encompasses even aesthetic appeal,” the professor continued.
Of course, just because that’s the way it is doesn’t mean that’s the way it should be, Suk said.
“It is time for Congress to address directly the fusion of practicality and beauty that makes fashion such a compelling medium of expression and a profitable creative industry, one that merits its own limited industry-specific protections,” she wrote.
“Otherwise, colorful as they are, lawsuits like the red sole case are likely to compound the uncertainty that results from the absence of statutory delineation of fashion design protection—and invite more lawsuits.”