Fashion, while difficult to define, is easy to identify. Anyone walking down Rodeo Drive or reading the likes of Vogue readily recognizes a brand not only by its labels, but also by the style, shape or color of its collections. But in an industry where aesthetic appeal drives purchasing decisions, are these elements rightfully proprietary assets, or rather decorative elements available for all to use? The recent case of Christian Louboutin S.A. v. Yves Saint Laurent America Inc.,1 concerning a red sole on shoes, has ignited this tension, and has highlighted fashion designers’ struggles to protect their valuable creations from others looking to emulate their appeal.
Supreme Court’s Colorful History
The Supreme Court first recognized the protectability of color as a trademark in Qualitex Co. v. Jacobson Products Co.2 In considering whether green-gold used for a dry cleaning press pad serves a brand-identifying function, the Supreme Court stated that color “can act as a symbol that distinguishes a firm’s goods and identifies their source, without serving any other significant function.”3 Before this decision, it was often argued that granting trademark protection to colors would deplete the colors available to competitors. Qualitex rejected this depletion theory, reasoning that alternative colors are plentiful. That it would be legally difficult to determine whether use of a similar color on a similar product would confuse customers was also rejected, as such determinations are regularly made with respect to the similarity of words and symbols.4
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