Copyright & Fashion

For anyone who has ever seen those mesmerizing red Louboutin soles ‘on the hoof’ knows, they really are a hallmark of the brand. I have many a memory of waiting for an  elevator in the Empire State Building and catching a flash of red out of the corner of my eye, and looking down saw it went with a pair of  stylish and sexy stiletto heels.  I actually think that unless you’ve experienced the Louboutin brand in such a fashion you may not understand why there was even the basis of a legal action between YSL and Laboutin over the color of a shoe sole.

If you’ve never seen the shoe ‘in action’, it almost doesn’t make sense that anyone would care about the color of a shoe’s sole – after all, it’s not even the most visible part of the shoe, right? Except that in this case, those trademarked red soles are so very characteristic that when you see a red-soled shoe, you automatically think ‘Louboutin’, even if on second look you realize that a. the soles aren’t the right red, and b. the shoes those soles are supporting are knock offs. It’s that first glance that supports the trademark, however, when you think ‘Louboutin’.

And the latter part of that statement is why it was so important for Laboutin to seek full legal protection for its trade marked red soles.  Prior to Sex and the City, those red soles (and even the name brand, Laboutin) would probably have only been known to a handful of shoe collectors and passionate Vogue readers.  But after Carrie Bradshaw’s widely viewed and passionate love affair with shoes, a much wider range of the population now identifies ‘red sole’ with ‘Louboutin’.

Personally, I couldn’t understand how the District Court could find that ‘color is functional in the fashion industry and cannot be protected as a trademark’.  While it is certainly true that color is an integral part of our industry and it would be a really horrific thing if one of the basic hues of the spectrum were removed from the designer repertoire, that’s not really what trademark and trade dress are saying.

There are so many cases out there of companies having trademarked colors that they protect rigorously – Hershey’s has their maroon they use on chocolate bar wrappers; IBM has IBM Blue; Coca Cola has Coke Red.  In all cases the formulation of the colors is specified down to the RGB/CMYK/HLS levels – as is Laboutin’s Red.  Coke isn’t suing Laboutin because Laboutin and Coke both use red, so it’s not really about the color, per se. It’s about trade mark – where you use the color – and trade dress. Companies spend years and millions of dollars building up their trademarks so they can become trade dress.

While red is certainly a commonly used color in the fashion industry, arguing the red adds to the functionality of a garment and therefore can’t be protected makes literally no sense. As a technical designer I have to scratch my head about this – it’s not like Laboutin is claiming that their red dye is somehow adding some new functionality to the sole – which would be ultra cool if it did, but it doesn’t. It’s like saying that Hershey’s wrapper color adds function to the wrapper (the WRAPPER is the functional part…not the COLOR).  Likewise, the sole of the shoe is the functional part – and Laboutin is not claiming the sole of the shoe as their trademark.  They’re claiming a specially dyed and color matched sole is their trademark.

I personally was delighted that the Second Circuit reversed the District Court’s Laboutin vs. YSL finding that color is functional in the fashion industry and cannot be protected as a trademark. It shows someone out there was thinking in a much bigger picture. Will the Second Circuit court’s finding suck for all the designers out there who want to make shoes with color soles? Only if you want to make red soles.

That means there are still literally millions of other colors out there you can use on the bottom of your shoes, and even trademark if you want to get into that game. And no big deal if you want to design a red T-shirt or dress. It’s not the color that’s in question. It’s the precise shade of the color applied to a particular part of a garment.

That of course leads up to the much bigger question of copyright. It will be interesting to see how the newest legal attempt, Bill S 3523, to provide copyright protection to fashion will succeed in Congress. But that’s a topic for another day.

Want to read more about Laboutin and YSL? Visit Lexology – they always have great ‘soundbites’ by actual lawyers.