Christian Louboutin's Distinctive Red Outersoles
In Christian Louboutin SA v. Yves Saint Laurent America, Inc. 11 Civ. 2381 (August 10, 2011), Judge Victor Marrero of the Southern District of New York has revealed an artistic and poetic streak rare among those sitting on the federal bench. The decision (link below)invokes Walt Whitman's Leaves of Grass, and sets up a hypothetical in which Picasso tries to stop Monet from painting water lilies in a distinctive color of indigo that Picasso had used during his blue period.
The blue analogy was used to refuse a request for a preliminary injunction from Christian Louboutin who has developed the expensive and distinctive red-soled shoes that have captured the fashion and celebrity world's imagination. Louboutin has a TM registration in the color red on the outersole of a woman's shoe.
Following Judge Marrero's decision, it looks like Louboutin's TM will not survive, in part over a TM claim to the color red where Louboutin only uses a particular shade of red.
Judge Marrero distinguished the fashion industry from industries, like in the Owens-Corning fiberglass case that protected the color pink, where the color is not part of the product. As Judge Marrero observed, fashion is all about color and color choices, unlike a product like fiberglass.
Additionally, quotes from Louboutin were introduced in which he ascribed a function to the color red, further endangering his ultimate claims.
Christian Louboutin v Yves Saint Laurent
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