In a lawsuit against Yves Saint Laurent, Louboutin claimed the exclusive trademark rights on the red soles. Judge Victor Marrero ruled however that the claimed trademark is “too broad” and therefore probably not valid.
Furthermore, the judge was of the opinion that: “Because in the fashion industry color serves ornamental and aesthetic functions vital to robust competition, the court finds that Louboutin is unlikely to be able to prove that its red outsole brand is entitled to trademark protection, even if it has gained enough protection in the market to have secondary meaning.”
This decision shows that it is very difficult to claim non traditional trademarks. These signs, like the red soles, often have some distinctive power but generally this is not enough to grant an exclusive right to a single party. After all, this would mean that only Louboutin is entitled to make shoes with red soles. Especially in the fashion industry where color is an important part of aesthetic elements such a claim is rather doubtful.
Source: NY Times
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