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Against Monopoly

defending the right to innovate

Monopoly corrupts. Absolute monopoly corrupts absolutely.





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You can trademark red soled shoes?

I missed one IP story in this issue of The Economist. Louboutin is suing Yves Saint Laurent for infringing it trademark by producing high-end women's shoes with red soles link here.

The extremes of IP law keep getting nuttier and nuttier. What shade of red is it trying to copyright? Would pink cross the line? How about reddish purple? Anyway, sue and YSL may just fold its tent and go away.


Comments

Louboutin may have a point and has a reasonably good chance of winning. Louboutin has been making high-end red-soled shoes for nearly two decades, and apparently people who buy shoes of that type identify the red-soled shoes with Louboutin.

The judge claims that if Louboutin gets its way that it would be like an artist removing a color from all other artists' palettes. Except, black, tan, brown and gray are the standard colors for shoe soles and apparently no other manufacturer has used red as a sole color for two decades. Louboutin is not trying to claim that any manufacturer cannot make red shoes, only that they cannot color their soles red. The red sole appears to be so synonymous with Louboutin that their trademark is a stylized red shoe sole.

Give that the vast majority of people would say that the color of shoe soles have little to do with the design and style of shoes (with the exception of Louboutin shoes, of course), and since Louboutin has clearly established the red-soled shoe as a mark of their designs, then I think that under trademark law Louboutin has a case. Note that the red sole is a registered trademark.

This case does not appear to be an "extreme" case of trademark law. For that, you should refer to some of Coca-Cola's trademarks. Now THERE are some extreme trademarks.

I do see people potentially being confused as to the source of the shoes if YSL starts making red-soled shoes. I also see Louboutin's brand value decreasing in that situation.

The problem with your reasoning, Alonniemouse, is that a similar line of reasoning could be used to support anyone first doing a particular thing, design-wise, in a market excluding anyone else from doing so. For example, once the only color you could buy a car in was black. Under your reading of the law, the first company to manufacture a non-black car and sell it could have trademarked the non-black car and been the only company selling colorful cars! Likewise the first color TV, the first glossy magazine with color instead of black-and-white content, the first in any particular color of any particular new item of clothing ...

This sort of thing goes way beyond what trademark law is about, which is avoiding consumer confusion. Is there any likelihood of confusion with a red-soled shoe with a prominent NON-Loboutin logo on it such as the Nike swoosh?

Beeswax:

My line of reasoning is predicated on two facts.

First, Louboutin was the only producer of red-soles shoes for two decades. If they produced red-soled shoes for a couple of years and then someone copied them, I could see your examples having relevance. However, no one copied them for 20 years.

Second, after years of being the only producer of red-soled shoes, they adopted the red sole as their company logo.

How long did someone produce cars with color other than black before others copied them? A year? Two years? No trademark possibility there.

How could you trademark color in a television? Color in a CRT is ephemeral and trademark pretty much requires a fixed expression.

Color magazines as a trademark? That seems unlikely since the print technology came before the magazines and printers were marketing to all magazines simultaneously.

None of these examples fits anywhere within trademark law. The first requirement for trademark law is a clearly identified feature. The red-soled shoes are certainly that. Second, you need consistency in usage. Again, the red-soled shoes are that. Third, no one else can be using the clearly identified feature or mark anywhere. The red-soled shoes were that at the time the trademark was granted.

I think Louboutin has a very good chance of winning. You do not. I guess we will see who is right as the case proceeds.

I doubt they were the only producer of red-soled shoes. They were probably the only high fashion producer of red soled heels, but that's not the entirety of shoes, nor the entirety of even just high heels. If they were iconic, then there have been knockoffs for years, at least in the same places you'd see fake rolexes and fake louis vuitton handbags.

Also, you've said nothing of consumer confusion. To bring a case, Louboutin has to concede that the shoes in question could be confused for Louboutin shoes, which, frankly, is a huge insult to Louboutin if true. I'm no fashion expert, but the shoes look very different to me.

Last Anonymous:

You are correct regarding the point about high-fashion shoes. Louboutin's trademark is specifically for women's high fashion designer footwear. Louboutin claims they are the ONLY producers of such footwear, at least in the United States. If there are knock-offs, then the knock-offs fall under trademark law and would not be dispositive with respect to validity of the trademark, so long as Louboutin defended their rights by enforcing against the knock-offs.

Louboutin is arguing confusion, among other things, and the first post above noted the confusion factor. I have never seen the YSL shoes. Do you have a link to pictures? Though any shoe by Yves Saint Laurent would seem to be a high-fashion shoe. It seems a bit of a tribute to Louboutin that YSL would stoop to copying Louboutin's iconic shoe. I guess YSL must be desperate.

This appears to have a comparison picture http://www.toocutemagazine.com/2011/04/christian-louboutin-sues-yves-saint-laurent.html They don't look that alike to me, even in the color of the red sole.

I also found it funny that you are saying YSL is desperate for copying. I'd say it's more likely Louboutin is desperate for suing. My understanding is that high fashion designers copy all the time, which is why designers that want to stay on top have to keep innovating (even when copying).

Anonymous:

Thanks for the picture.

Both shoes look like high fashion shoes. I say YSL is desperate since Louboutin is known as THE company with red-soled shoes. They have also topped the Luxury Brand Status Index three years in a row, which Gucci (Gucci owns the YSL brand) only wishes they could do.

I did a little searching around the internet and apparently if you buy those sorts of things you know that red-soled high fashion shoes = Louboutin. So YSL has to be trying to cash in on Louboutin's trademarked soles. Frankly, I would have thought the red suede would look better with a black sole, unless you are trying to confuse people who would normally buy Louboutin.

I agree that high fashion designers copy all the time. However, I doubt that Louboutin is interested in Gucci's stylized "G" or the Izod alligator. Louboutin is interested in their trademarked red sole, which has little to do with shoe design - which is why Louboutin was able to get a trademark in the first place.

Louboutin will almost assuredly pursue this case as far as U.S. law allows, so we need not speculate further since our positions are established. We just need to see how the courts decide.

Louboutin was the only producer of red-soles shoes for two decades. If they produced red-soled shoes for a couple of years and then someone copied them, I could see your examples having relevance. However, no one copied them for 20 years.

So now you're saying that if your product design is enough of a yawn that nobody else bothers doing anything similar for long enough, that gets you a monopoly? That's even more ridiculous.

I agree that high fashion designers copy all the time. However, I doubt that Louboutin is interested in Gucci's stylized "G" or the Izod alligator.

Because those are actual logos, separate from the shoe's own design and color scheme.

As for Loboutin's logo, what is it, really? Not the shoe, or the shoe sole, itself, surely, but a stylized representation in an image I'd guess, like the Nike swoosh, but red and shoe-sole-shaped. There's a distinction to be made, again, between the logo and the actual shoe.

Beeswax:

No, I am saying that if you become so identified with a particular color and no one else is producing that color, then you can get a trademark on it.

Other registered color trademarks, some of which have already been litigated and upheld:

Owens Corning's use of pink for insulation. UPS's use of brown for their delivery uniforms and trucks. John Deere's use of green for farm equipment. Qualitex's use of green-gold for their cleaning pads. Tiffany blue is trademarked for use on boxes.

I am saying that if you become so identified with a particular color and no one else is producing that color, then you can get a trademark on it.

Ridiculous.

Where is the likelihood of confusion?

Owens Corning's use of pink for insulation.

You're joking. Pink is pretty much the standard color for insulation. Many manufacturers use it. I certainly don't immediately think "Owens Corning" when I see pink insulation.

UPS's use of brown for their delivery uniforms and trucks.

Trucks and uniforms are not their product.

The rest of your examples are similarly flawed.

Beeswax:

Only Owens-Corning uses pink for their insulation. If you know of another manufacturer who does, I would appreciate the heads up. I am sure Owens-Corning would like to know as well, because they will take the infringer to court.

Trucks and uniforms are not their product? What does that have to do with anything? I was merely suggesting that color was something that was trademarked frequently. While trucks and uniforms may not be their product, their advertisement talk about "Brown" delivering. It seems as though "Brown" is a part of their product identity.

In what way are my examples flawed? Are they registered trademarks for color? Are they applicable to products four of the five examples I gave (since UPS is a service)?

As for your statement of "ridiculous," in what way is it ridiculous? I am making a statement of observation regarding registered trademarks. How is a statement of fact "ridiculous"?

Beeswax:

Owens-Corning's insulation was naturally yellow, I think. Their marketing department wanted something to distinguish their insulation from everyone else's insulation, so they began adding red dye to the insulation, making it pink. Thus, the pink color is merely for fashion.

They were the only company in the United States to make pink insulation when they applied for the trademark on pink as an insulation color in the United States. Owens-Corning was the first company to get a trademark for color, and are the only seller of pink insulation in the United States.

We were discussing the hypothetical case of being able to trademark having your *product* come in particular colors. So, UPS truck and uniform colors are not relevant. Even insulation is dodgy since the color isn't eventually part of the home decor, but hidden inside the walls. That's still quite different from enforcing a monopoly on shoes of a certain color scheme.

As for everything else: you're a pro-IP wacko. You'd patent, trademark, or copyright "sweet tasting" and then enforce a monopoly on candy if you thought you could get courts to uphold any of the three. 'Nuff said.

Beeswax:

Re being a pro-IP wacko. Au contraire.

I study IP laws and their application in great fascination. I certainly am not for an expansion of IP law, and I think there are two areas where IP law is beyond excessive, that being copyright law and patents as applied to software and business methods.

As for the examples, I merely provided examples where color was trademarked, the point being that such trademarks had been issued, litigated and upheld. Four of the trademarks apply to "products," though you could debate that the Tiffany blue is for a box rather than the products that go into the boxes.

Qualitex litigated their green-gold pads in court against a competitor, and won.

Similarly, John Deere has litigated against companies using green for farm equipment, and won.

You point about Owens-Corning is accurate, that it is not visible after the house is built, but prior to the collapse of the housing industry, pink insulation was highly visible in thousands of places as houses were being built. Seeing the pink bales of insulation I must admit that I think of Owens-Corning's spokescreature, The Pink Panther. Of course, that would be in the U.S. only.

Re being a pro-IP wacko. Au contraire.

Actions speak louder than words, alonniemouse.

Re Actions speak louder than words

Yes they do, Beeswax. In your case, they scream.

Beeswax:

What? No comment about the color trademarks?

It's all been said at this point; and no reasonable person can think it right or proper that a company can get a monopoly on a particular color scheme for an item where such a scheme is decorative. That is clearly an area not intended for trademark law (which is supposed to cover logos, names of businesses, and such, fairly narrowly) nor utility patent. Copyright and design patent can in principle apply to such things, but simple color schemes don't contain enough original expression to qualify for either.

That some people in the comments here are evidently not reasonable is, well, unfortunate but probably inevitable.

Beeswax:

I understand the point you are making, just as I am sure that you understand that in the U.S. trademarks on purely decorative colors have been issued and are permitted under U.S. trademark law. Multiple U.S. courts, including the Supreme Court, have already agreed that color trademarks are legitimate.

I am sure we will all be following the Louboutin case with great interest.

Louboutin filed an appeal of the injunction. The judge has stayed the invalidation proceeding of Louboutin's trademark pending the appeal. The judge was prepared to render summary judgment in the case. Considering the judge's remarks to this point, he was likely going to declare the trademark invalid.

I like your blogs very much.
Tiffany has entered an amicus brief supporting Louboutin's position. Hardly surprising since invalidation of Louboutin's trademark would automatically mean that Tiffany's trademarked blue would be invalid. Anticipate that other companies with color trademarks may also file amicus briefs now that Tiffany has.
Tiffany, of course, is another well-known trademark troll, famous for overreaching claims in frivolous lawsuits against eBay and other places where people resell their products.

Trolls of a feather flock together, it seems.


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