In a decision with implications for businesses seeking to build brands around distinctive colors, the U.S. Court of Appeals for the Second Circuit on Sept. 5 reversed a lower-court decision and held that the use of a single color in a fashion product has the potential to become a legally protected trademark. The panel also indicated that, in any industry, whether a color functions as a mark is a highly fact-specific inquiry that cannot be decided by application of a per se rule. Despite the reversal, the panel maintained that French shoe designer Christian Louboutin could not prevent competitor Yves Saint Laurent from offering monochromatic red shoes. Christian Louboutin v. Yves Saint Laurent, 11-3303.

This decision was highly anticipated by both trademark lawyers interested in trade dress issues and the fashion enthusiasts for whom lacquered red soles on shoes are synonymous with Louboutin’s luxury brand. Louboutin has enjoyed decades of success as a high-fashion shoe designer and his work is always accented by red soles. The famous red soles are widely discussed in the pages of fashion magazines, in department stores and on the red carpet. Certain cobblers specialize in repairing Louboutin soles, so that those who purchase the shoes can continually have the red soles restored if they begin to wear away. Last year, Louboutin even published a coffee table book dedicated to his designer footwear.

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