Did you ever think you could own a color- Christian Louboutin seems to think so

Charles Hwang

Reviewed by Cynthia Amis

Mr. Louboutin, known for his famous red soles, recently filed suit against Yves Saint Laurent (“YSL”), in the United States District Court Southern District of New York.

According to the filed complaint, Mr. Louboutin claims that the idea of a red outsole was conceived by him and introduced to the world in 1992, and since then has been used on every shoe he has sold under the Christian Louboutin name. Since the filing of the complaint, YSL has refused to stop selling the allegedly infringing shoes and stated “red outsoles are a commonly used ornamental design feature in footwear, dating as far back as the red shoes worn by King Louis XIV in the 1600s…” One allegedly infringing YSL shoe is the Palais, a suede red pump complete with a red outsole.

Though the overarching question is, does Mr. Louboutin own the right to make and sell shoes using his ‘Red Sole Mark’, from that question spill a million others. Does his trademark only cover women’s luxury shoes or does it apply to sneakers with red outsoles as well? What about men’s designer shoes? The courts will decide whether Mr. Louboutin’s trademark is a valid trademark and if necessary, will determine whether YSL’s product infringes on that right.

However, perhaps the most salient issue is the tension between creativity and its protection or lack of protection by law. Fashion, like many other industries, which require a certain level of artistry, require and deserve legal protection. Designers toil to create signature looks and collections, and adopt signature colors to grow their brand. Often, the law does not provide sufficient protection from counterfeiters and copycats who reap the benefits of the original designer’s hard work. Recently we saw that Kate Middleton’s royal wedding dress was re-created within five hours after it was unveiled to the world, all the while Sarah Burton of Alexander McQueen was not compensated.

On the other hand can there be such a thing as too much protection? Allowing one person to own or control the placement of a particular color on a consumer item can potentially stifle creativity. Suppose a new synthetic red material, which is great for outsoles of shoes is developed; does that mean only Mr. Louboutin may use that material? Fashion is an industry that thrives on creativity and innovation. Allowing one person to own or control the placement of a particular color on a consumer item in my opinion can also stifle creativity despite protecting the rights of the owner of that mark. Furthermore, it has the potential to stifle the creativity of the owner of the mark as well because it’s possible the owner of the mark will over-rely on the mark limiting his own potential for innovation and creativity.

The policy that is produced from the resolution of this suit is potentially more important than who wins or loses and I hope that the courts are able to a strike the right balance between creativity and the law.

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