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The Second Circuit Speaks on Color Marks and the Aesthetic Functionality Doctrine

By Samantha L. Hayes

It is not often when fashion and style blogs cover federal court decisions, but the fashion world currently is abuzz with the Second Circuit's recently issued decision in Christian Louboutin S.A. v. Yves Saint Laurent America Holdings, Inc., No. 11-3303-cv, 2012 WL 3832285 (2d Cir. Sept. 5, 2012). As the courts involved in this case have noted, Christian Louboutin's red-soled shoes have become ubiquitous on red carpets and in fashion circles as high-style, high-priced footwear that are immediately associated with Louboutin. So much so, that in 2008, the USPTO granted Louboutin a federal registration for a red, lacquered sole on footwear (the “Red Sole Mark”).

The controversy over the Red Sole Mark began in early 2011, when Louboutin discovered that Yves Saint Laurent (“YSL”), a venerable French fashion house also known for high-style, high-priced footwear and apparel, was preparing to market a line of monochromatic shoes in various colors, including red. Louboutin filed suit in the Southern District of New York, seeking a preliminary injunction preventing YSL from marketing or selling its red monochromatic shoes that also featured red soles. Although the case immediately sparked the interest of the fashion industry, clamoring to watch two fashion giants duke it out in court, intellectual property scholars and practitioners also took note of the novel issues presented in the case. Though perhaps for different reasons, all observers eagerly awaited the Second Circuit's decision determining whether Louboutin could indeed prevent others from using the color red on footwear soles.

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