Whether color can serve as a trademark has been a long-debated question and the answer or answers to the question have not always been consistent. Much of the confusion stems from concerns about removing the entire portion of the color palette from the public. The issue of color as a trademark was recently the subject of a high-profile litigation in the fashion industry. In that case, fashion industry powerhouses Christian Louboutin, Christian Louboutin S.A. and Christian Louboutin LLC (“Louboutin”) and Yves Saint Laurent America Holding Inc., Yves Saint Laurent S.A.S. and Yves Saint Laurent America Inc. (“YSL”) battled over the color of soles on high fashion shoes.
Louboutin sued YSL in a New York federal district court for trademark infringement. Louboutin, well known for its sought-after red, lacquered outsole on a women’s high fashion shoe, as frequently worn by celebrities on red carpets as well as seen on movie and television screens, sought to prevent YSL from having the same red, lacquered outsole on a women’s high fashion shoe. Specifically, Louboutin was trying to prevent YSL from selling a red monochrome shoe with a red outsole, which it deemed infringed Louboutin’s red sole mark, in Christian Louboutin S.A. v. Yves Saint Laurent America, 778 F. Supp. 2d 445 (S.D.N.Y. 2011).
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