In the US, color alone may be protectable as a trademark when it identifies and distinguishes a particular brand. This type of color, trademark protection is most common with industrial goods like fiberglass insulation that must conform to strict regulatory standards. For example, ‘pink’ fiberglass is a trademark of Owens Corning.
FASHION, however, is another world entirely and the high-end shoe designer, Louboutin, was recently denied a monopoly over the color RED used on the soles of designer footwear. Even though Louboutin was granted a US trademark registration for red soled shoes in 2008, a Manhattan judge recently held that Louboutin could not prevent Yves Saint Lauren (and other designers) from designing and selling red-soled shoes. The judge also stated that Louboutin’s ‘Red Sole’ trademark registration was likely to be cancelled. (This holding is likely to be challenged, appealed… and possibly overturned).
Wouldn’t it be strange to think of only one designer or fashion house owning an exclusive right to use a particular color? The court thought so and held the fashion industry is a highly creative industry dependent on access to the full spectrum of colors.
(Interestingly, the judge did create a distinction between Louboutin’s Red Sole mark and other fashion color marks like the Burberry Plaid because the plaid is an arrangement of different colors and not a specific, single color.)
Enjoy this new freedom to paint your soles red.
BY: Vanessa Kaster, Esq., LL.M.
For more information: NY Law Journal: http://www.law.com/jsp/nylj/PubArticleNY.jsp?id=1202510810474 and Judge Marrero’s 8/10/11 Decision: http://www.nylj.com/nylawyer/adgifs/decisions/081111marrero.pdf. Red Sole USPTO Registration # 3361597. @iplegalfreebies and www.kasterlegal.com.