Design house Christian Louboutin—represented by McCarter & English IP partner Harley Lewin—is appealing a federal judge’s decision allowing high-fashion rival Yves Saint Laurent to proceed with plans to sell red-soled shoes that Louboutin claims infringe its trademark. In a notice of appeal filed Friday, Louboutin asks the U.S. Court of Appeals for the Second Circuit to do something Southern District Judge Victor Marrero refused to do last Wednesday: issue a temporary injunction prohibiting the sale of the YSL shoes in question, part of a monochrome line that comes in other colors such as purple and orange (NYLJ, Aug. 11).
While acknowledging that the public strongly associates red outsoles with the Louboutin brand, Judge Marrero said color is an essential element in fashion design that cannot be trademarked. Beyond finding that Louboutin would have a hard time winning the infringement suit it filed against YSL in April, he said he would rule in YSL’s favor on summary judgment should the company move to invalidate Louboutin’s trademark.
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