What the heel?

On April 7, 2011 one French fashion designer sued another in US Federal District Court for the Southern District of New York.  Now, anyone who knows me can tell you, a fashionista, I am not.  But this case sure is fashionating!  (Sorry, I could not resist!)  Shoe and handbag designer, Christian Louboutin, filed suit against fashion designer Yves Saint Laurent America (YSL) alleging that YSL copied Louboutin’s red shoe sole trademark.

That’s right:

The soles of these shoes represent the soul of the CHRISTIAN LOUBOUTIN brand, and Louboutin’s gonna sue if he has to to prevent others from stepping on his toes.

Louboutin claims to be the first designer to sell shoes with red colored soles, which the suit asserts, “is instantly recognizable.”  The suit continues:

[framed_box]The Red Sole Mark is the signature of CHRISTIAN LOUBOUTIN brand footwear.  Louboutin footwear is instantly recognizable as a result of Plaintiff’s trademark red outsole.  The location of the bright color on the outsole of a woman’s pump is said to provide an alluring “flash of red” when a woman walks down the street, or on the red carpet of a special event.[/framed_box]

The red carpet statement is no joke!  The suit attributes the growth of Louboutin footwear in the US to celebrities, specifically calling out the March 2005 cover of Vanity Fair, featuring the cast of Desperate Housewives, all wearing Louboutin shoes, as well as numerous other celebrity shoe sightings.  These shoes are famous that ABC Entertainment News even did a photo montage of Celebrities Who Love Christian Louboutin Shoes, while ABC News itself ran a story on the lawsuit the day after it was filed.  At least 24 paragraphs of the complaint address the celebritydom of Louboutin shoes.

Louboutin has two US trademark registrations for its “Red Sole Mark,” one was granted on January 1, 2008 and the other on January 29, 2008.  The odd thing is, the YSL shoes that allegedly infringe on the Louboutin sole mark are ALL red, not just their soles:

Further, they’re also part of a collection of multi-colored shoes that are solid colors, soles and all:

Louboutin will have to prove not just that its soles function as a mark, which I think it easily can prove, but also that YSL’s soles infringe, which I think will be tough to prove given the seemingly ornamental, functional aspect of YSL’s colored shoe soles.  Since both companies have deep pockets, this case could actually go to trial, so we should get to watch it for years to come.

Even more interesting, is that Louboutin would choose to pursue LVT instead of, say www.christianlouboutin-knockoff.com:

[iframe http://www.christianlouboutin-knockoff.com/index.php?main_page=index]

Louboutin probably figures that there’s a higher chance of collecting damages (or a monetary settlement) from a well know fashion designer than from a blatant counterfeiter.

Trademarks are not limited to words and logos; marks can be colors, sounds, and even scents!  Knock-offs generally aren’t a good business model.  As this case shows, you might not realize that what you’re copying is protected, and you never know what rights will be asserted by brand (or copyright) owners.