On Tuesday, the famous shoe designer Christian Louboutin SA entered French was a Court of appeals in New York to defend your exclusive right to use the Red — the company calls this tonality of “Red China” – to take the soles of your shoes of salto, popular among the consumers in spite of the high price.
Before a large audience and visibly well-dressed — including several women with red soles shoes — lawyers for both sides presented their arguments.
“The Christian Louboutin created one of the most iconic brands of the 21 century”, argued the lawyer Harley Lewin, before a panel of three judges. “The Louboutin transformed a pedestrian object into something full of beauty.”
Lewin and his client were in court hoping to reverse a decision of first instance, which seemed to suggest that the Louboutin shouldn’t have the right to own a trademark red soles for shoes. In recent years, these have been appearing on the feet of a whole list of celebrities, Scarlett Johansson and Halle Berry to Knowles and Christina Aguilera.
Last August, Victor Marrero, the Manhattan federal judge denied the request of Louboutin to prevent another legendary French fashion house Yves Saint Laurent, to sell a line of shoes entirely red, at the top and into the sole.
“The requirement of Louboutin would release a red cloud over the entire fashion industry, restricting what other designers can make, as would enable the Louboutin paint with a full palette,” wrote judge Marrero, on his sentence. “This way, the Louboutin could sell a fully red, while other costume designers couldn’t do the same.”
David Bernstein, lawyer Yves Saint Laurent, argued on Tuesday that the judges must sustain the decision of judge Marrero.
“The artists of this type require the full palette of available colors. To be able to compete, and compete fairly, we need the red, “said Bernstein. “We do not want to be informed that we can manufacture shoes, green, blue, purple … but we are forbidden to manufacture red shoes”.
In 2008, the Louboutin got a trademark to use the red on the soles of shoes. But in its ruling, by denying the injunction of Louboutin, judge Marrero suggested, vehemently, that grant this record was a misunderstanding.
The judge acknowledged that it is possible to grant trademarks for colors of products, especially when a single color is used only to identify or advertise a brand.
But the judge Marrero wondered if a color could be a trademark for use in fashion, where “the color (…) performs a creative role; She has the goal of pleasing or useful, and not identify and announce a given commercial origin. ”
During the hearing, the judges of the Court of Appeal dealt with two main issues: whether the judge Marrero played correctly the laws on trademarks and if the process should go back to it for further clarification, as to whether there would be a “likelihood of confusion” between the two brands of shoes.
Susan Scafidi, Professor of law at Fordham University and a specialist in law and fashion, who has been following the case, said he expects the Court of Appeal correct the judgment of judge Marrero, who in his opinion, “put ink well out of bounds” in his decision.
“There are wider issues raised by this case, among them if the fashion design really has no protection”, she said. “The fashion industry has been trying to do this for 100 years, but the intellectual property laws are still stopping well on port of fashion.”
