From Volume 87, Number 5 (July 2014)
As demonstrated by the recent Second Circuit decision in Christian Louboutin v. Yves Saint Laurent America Holding, Inc., a shoe can certainly offer a great deal of legal controversy. In September 2012, the Second Circuit upheld the validity of designer Christian Louboutin’s trademark for the color red on the soles of his shoes. Although Christian Louboutin and the fashion media have called the case a victory for color trademarks, Louboutin’s affirmation of the “aesthetic functionality” doctrine will likely make defending color trademarks harder in the future. Further, a survey of color trademark registration activity and case law reveals that the Louboutin decision is an outlier, and the overwhelming tendency of courts is to weaken color marks in infringement lawsuits. Therefore, color mark applicants and current color trademark holders face steep obstacles in registering and protecting their color marks, and this battle will likely become more challenging in the near future.