Red is Mine All Mine!

Sunday's NY Times relates the intriguing lawsuit between Christian Louboutin and Yves Saint Laurent over who "owns" the color red. You see, Yves Saint Laurent had the audacity to create some shoes that happen to be red. All red, from the upper to the sole. Christian Louboutin had previously created some shoes that happen to have red colored soles and in seeing the red shoes of the rival design house, well they started seeing red.

What happens when people see red? Why, they sue and so Christian Louboutin filed suit against Yves Saint Laurent because Louboutin owns the federally registered "red sole mark." Happily the case was tossed last summer, because, let's face it, nobody owns the color red and the court found that the likelihood of their success in court was quite low.

This week they are back in court appealing the case and wasting the court's time and making their lawyers more money.

Certainly those up on their high-end fashion have come to associate women's shoes with a red underside with Christian Louboutin. The fashion house has invested tons in making that red sole and linking its shade of red with the shoemaker. Trademark law is there to protect such investments and to ensure that somebody else doesn't get to profit from your good name. But come on. It's red. A color. It's not a name in a distinctive type face, it's not the ubiquitous nike swoosh or an interlocking LV on an obscenely priced Louis Vuitton handbag, it's a color.

Believe it or not, the Supreme Court has actually ruled that a color can indeed be protected. That was in the case of a company that makes dry cleaning equipment and the green colored pads served no other purpose than to indicate the maker. You couldn't trademark red colored, strawberry flavored gum, because red and strawberry go together, the color being part and parcel of the flavor and therefore functional. When it comes to fashion, the court has held that color is always functional and therefore Louboutin can't protect their red soles.

As stated in the NY Times article:

That brings us to the fashion Catch-22 that the red sole throws into relief: Trademark law does not protect design features that are “functional,” the meaning of which, it turns out, encompasses even aesthetic appeal. But in copyright law it is precisely the utilitarian and non-aesthetic aspect of apparel and shoes that leaves fashion design unprotected from copying. Fashion design is caught between opposing demands and exclusions, and snubbed from both ends.

Pity the poor fashion designer who has no way to protect their designs. Clearly copyright law needs to be changed but not to provide designers with more protection but to increase the freedom we all enjoy.