The same can be said about Cadbury's purple packaging for its milk chocolate. Still, the Red Sole Mark would likely tip the scale heavily in favor of a source-identifying aspect, over competitive costs to competitors, especially in light of the market study results submitted by both parties in the litigation. When the court determines whether a design is functional, it weighs the “source-identifying aspects” of the mark against the “competitive costs of precluding competitors from using the feature.” The court in the Louboutin case did not reach this analysis because it rested its reasoning on the preliminary “distinctive feature” test. trademark laws, the courts will not recognize a mark that puts competitors at a “significant non-reputation-related disadvantage.” This is known as the “aesthetic functionality” test-when a color trademark will “significantly hinder competition by limiting the range of alternative designs,” it will not qualify for trademark protection. ![]() So why can the red bottom of a shoe qualify for a trademark, but a floral design for a dish set cannot?īecause, according to the Second Circuit's reasoning, a floral design is a necessary aesthetic function to chinaware, and red shoe bottoms are not. And no, the law will not uphold a mark that strips competitors of a necessary function of a product, or in terms of design, “a range of alternative designs.” The functionality defense generally protects the use of color In these cases, color alone is not enough, but color used consistently over time, which consumers associate with a brand, may be subject to trademark protection. It held British consumers had come to associate the purple packaging of milk chocolate with the Cadbury brand since it came into use in 1914. In London, a court also ruled that color could be subject to trademark protection when the court upheld Cadbury's use of the color purple for its milk chocolate packaging. The law refers to such a mark as acquiring distinctiveness, or if not inherently distinctive (like the Nike swoosh), it is held distinctive if acquires secondary meaning in the mind of consumers. If a company invests significant resources into developing a mark that consumers come to recognize, it's only fair that the company should enjoy exclusive use of its own branding. ![]() The market study results were no accident-Louboutin invested millions of dollars marketing its red-soled shoes since they entered the market. Courts, secondary meaning is acquired when “in the minds of the public, the primary significance of a product feature is to identify the source of the product rather than the product itself.” Louboutin submitted market studies to the court, which concluded that consumers had come to recognize the red sole as identifying the Louboutin brand. Secondary meaning-when a color acts like a logoĪccording to U.S. Though the case was considered a win for Louboutin, the court did not grant the injunction against YSL because its use of the red sole was in conjunction with a red upper shoe instead of a different color, was not a use of the Red Sole Mark. The Second Circuit reversed, holding that the color red, when used on the bottom of a shoe with a contrasting upper shoe color, had acquired “secondary meaning” in consumers' eyes. The District Court of New York refused to enjoin YSL, holding that color alone could never be protected as a trademark. ![]() In 2011, Louboutin filed a lawsuit against Yves Saint Laurent (YSL), seeking to enjoin the high fashion competitor from selling its monochrome red shoe, which also has a red sole. Apparently, he got the idea when he painted the bottom of a black shoe with red nail polish, and in 2008, Louboutin applied for trademark registration for the red shoe bottom (“Red Sole Mark”). Christian Louboutin has been using red-lacquered shoe bottoms on his high fashion pumps since 1992.
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