The eyes of the intellectual property community have been focused myopically on the seemingly endless Google-Samsung-Apple patent battles. Because that's where the big legal fees are, we hear you cynically intone.
But an equally interesting fight has been waged in the US Federal courts for the past year between two French design houses, Christian Louboutin and YSL (Yves St. Laurent). Louboutin claimed that he 'owned' the use of the color red on the soles of women's shoes. YSL disagreed.
To many mere mortals, the notion that anyone can own the use of a color seems a bit extreme. What's next, suing everyone with a green lawn who didnt pay for permission? But the court, in its wisdom, ruled that Louboutin has the right to use that color on shoe soles provided, Solomonically, that the uppers are a color other than red. Sounds a bit, well, persnickety to you?
Philistine! YSL won the right to use red soles as long as the uppers are red because it pioneered that particular 'look and feel.'
Which leads us to the larger point: that companies like Louboutin - and Apple - are fighting for greater restrictions on the use of intellectual property - patents, copyrights and trademarks - that fairly belong in the public domain. The whole point of intellectual property law is to protect the work of creative people and entrepreneurs who deserve the right to benefit from the work they have done in designing and building innovative products and services.
There are many who fear, however, that the increasingly restrictive applications of this concept will reduce the incentive to innovate while driving up prices.
We may well celebrate M. Louboutin's design sensibility and taste. But it is unlikely that many of us can afford his shoes. And the concern is that a growing string of such decisions may put large portions of the human spirit off limits. JL
Basil Katz reports in Reuters:
The bright red soles on French footwear designer Christian Louboutin's high-heeled shoes are so distinctive they deserve trademark protection, a U.S. appeals court has ruled.
A three judge panel at the 2nd U.S. Circuit Court of Appeals in New York reversed on Wednesday a lower court's finding that a single color could not be trademarked in the fashion industry.
Paris-based Louboutin, whose pumps have graced many famous feet, sued rival Yves Saint Laurent (YSL) in April 2011 in Manhattan federal court over what he claimed is his signature use of lacquered red on shoe soles.
In August 2011, Manhattan federal judge Victor Marrero denied Louboutin's request for a preliminary injunction that would have prevented YSL from selling pumps with red soles.
But in Wednesday's ruling, the appeals court panel said Louboutin's long-standing use of the red sole was "a distinctive symbol that qualifies for trademark protection."
However, Judges Chester Straub, Jose Cabranes and Debra Ann Livingston limited Louboutin's trademark to shoes where the sole stands out in contrast to the rest of the pump. The finding would allow YSL to produce a monochrome red shoe with a red sole, the opinion said.
David Bernstein, a lawyer for YSL, called the opinion a victory for the label, which is part of French fashion company PPR SA (PRTP.PA).
"The Court has conclusively ruled that YSL's monochromatic red shoes do not infringe any trademark rights of Louboutin, which guarantees that YSL can continue to make monochromatic shoes in a wide variety of colors, including red," Bernstein said in a statement.
For its part, Louboutin also called the ruling a win.
Thanks to the ruling, Louboutin "will be able to protect a life's work as the same is embodied in the red sole found on his women's luxury shoes," said Louboutin lawyer Harley Lewin.
The opinion based its reasoning on a 1995 U.S. Supreme Court decision Qualitex Co. v. Jacobson Products Co. and on the Lanham Act, which governs trademark law.
The Qualitex decision left open the possibility of defending a single color trademark on the grounds that its use, under certain circumstances, is uniquely associated with a brand, the appeals court said.
YSL has argued that Louboutin's red sole trademark was obtained fraudulently and sued its rival to cancel it. YSL also has other counter claims pending against Louboutin as part of this case.
Since shortly after Louboutin founded his first boutique in 1991 in Paris, his lawsuit said, all his shoes have had red-lacquered soles. They can fetch more than $1,000 a pair.
The case is Christian Louboutin et al v. Yves Saint Laurent America, Inc., 2nd U.S. Circuit Court of Appeals, No. 11-3303.
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