YOUR SOLE IS MINE!

          IP Quail ChronicleIMG_1941

A pressure inducing page turner.”

         IP Quail Times

  “We couldn’t decide who to swing for.”

        IP Quail Observer

 “A warp of philosophical plots.”

The Characters:

  1. Christian Louboutin- [Lu buh tah]: A French fashion design house, a giant in a sea of vultures oozing opulence and the bane of many a wallets.
  2. Yves Saint Laurent [Loh roh]: ‘Un autre’ French fashion house, with grandiose yet wearable threadery.

The Setting:

A musty wooden enclosure fortified by four partitions enjoined centrally by a high ceiling with petrified floors, marble exteriors (variable) and mortals in flowing black robes, white powdered wigs and a gavel; a Court.

The Plot:

A partially wounded bleeding sole vs A fully wounded bleeding shoe, which one was wounded first and can the partially wounded sole have an exclusive right to be wounded to the exclusion of all other fully wounded shoes which would likely confuse regular shoes that the partially wounded heel was the original and first officially bleeding heel? The plot thickens (or clots).

Can a single colour be claimed as a mark of trade in fashion and if so, could a red lacquered sole which contrasted in colour to the rest of the shoe be considered as a distinctive identification for a brand?

The Conflict:

Your sole is my sole, and my sole is all mine. No so? Could Christian Louboutin have the exclusive use of the colour red on the soles of its designer footwear to the exclusion of other brands?

The Resolution:

No, no, no (hand smack!) You can’t do that. You can’t eat all the cookies in front of a drooling pack of vultures. Leave some crumbs! You cannot claim exclusive use of a colour in fashion but wait, just you wait one second, you may be able to claim how you use it; in this case on a sole contrasting with the upper shoe, but only in the designer shoe market.

Consider a scenario. Lady makes straw hats, lines them with purple linen to absorb sweat (and associates purple with royalty). Upper crust ladybirds flock for her hats and she hikes the price. Her twin Ladio when painting the shed knocks over the can of paint emptying half in the middle of his cowboy hat. It dries off and leaves a purple stain. People notice his purple coloured cowboy hat interior and request him to make some for them. No doubt Lady is furious upon finding out that her colour concept has been swiped albeit to a different market. Ridiculous to prevent people using a colour?

Can a single colour serve as a trademark on a product so widely used as a contraption used to protect feet?

In 1992, the red sole was developed by Christian Louboutin for women’s high fashion footwear and over the years became such a hit and was so closely associated to the brand that in 2008, protection for it was granted for that polished red heel in the form of a trademark. Enter YSL who created a collection in 2011 with similar bright red soles but which matched the entire colour of the shoe (monochrome).

Dissection: Can the look of something through colours which are in the public domain for free use (aesthetics) be protected, and secondly can certain elements of something with the special purpose of practicality (functional) as shoes be the subject of legal protection exclusive to one party?

Aesthetics: On the basis that the look and feel of something can distinguish one products from that offered by others and thus can be easily recognized by customers, the contention was whether the red polished colour on the sole of Louboutin’s shoe was distinctive and thus warranted of protection in the high end designer footwear market.

We can appreciate that in fashion, some companies depend on colour for recognition. Think of the Tiffany Blue box (trademarked by the way) which is described as an international mark of style and sophistication. Or the Burberry check pattern where emphasis is not so much on the colour but on the ‘arrangement’ of those colours and how they can create a cult recognition of a brand.

Functionality: For something with the practical use of protecting feet, Louboutin claimed they went further by making their shoe appealing and a signature of their craftsmanship. The red sole is one of the most recognizable brands in high fashion for footwear and is oft associated with a certain level of class and taste.

In the end the court held that it was worth protecting the colour  red sole of the Christian Louboutin shoe BUT only if it contrasted with the colour of the rest of the shoe. This means that other brands (read: designer footwear) are free to use the red colour on their shoes but only if the rest of the shoe is red as well i.e. one colour, (monochrome).

Take away: Fashion is heavily dependent on colour. Which means that a whole season of red stands the risk of being liable for infringement if various parties had the legal right to use the colours in a specific way and others infringed on that right. Contrasting red sole (not fine, don’t do it) One colour red shoe and sole; monochrome (fine, knock yourselves out).

Quail out!

 

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