Last week, Judge Victor Marrero refused to grant Louboutin a preliminary injunction to prevent YSL from selling red-soled shoes, saying that ‘Louboutin is unlikely to be able to prove that its red outsole brand is entitled to trademark protection’.
‘Louboutin’s nightmare is that every fast-fashion retailer will begin stirring up vats of red dye because it believes the trademark is officially canceled or is about to be,’ Susan Scafidi, director of Fordham University’s Fashion Law Institute, told WWD. ‘Louboutin stands to lose so much. This is identity theft for him. Those red soles are almost as recognizable as his name.’
As the case proceeds through a legal process that could see the unhappy party appeal all the way to the US Supreme Court, other groups are paying close attention.
After all, brands and retailers beyond Louboutin rely on collective associations with certain colours to convey aspects of their identity: Hermès orange, Valentino red and Chanel beige all evoke specific visions of glamour and exclusivity. So important is its signature yellow hue to Selfridges that when the retailer celebrated its centenary in 2009, it invited key brands to design exclusive items like Blackberry handsets, Toywatches and Hermès bags in canary yellow.
Tiffany’s sea-foam green, similarly, is the strand that links the jewellery group’s store design, advertising and packaging. That trademarked shade has as its Pantone number Tiffany’s founding year (1837). It’s so recognisable that it’s often referred to as ‘Tiffany blue’.
Fashion consultant Mandi Lennard of Mandi’s Basement told us that strong brands have strong enough foundations to withstand mimicry.
‘The type of customer who already wears Christian Louboutin will not be offended by YSL producing a shoe with a red sole, as their preference is and will continue to be Louboutin,’ she said.
‘I think Louboutin should have introduced different-coloured soles a long time ago. It’s healthy to challenge your customer once in awhile, flex your muscles, be brave.... You don’t need to use a red glossy sole as a crutch to your brand identity, Louboutin; your true customer respects you for understanding women and how they want to feel.’
Judge Marrero’s main point of contention isn’t the recognisability of Louboutin’s trademark, but the limiting effect of a single brand owning a colour. He said that Louboutin’s sole policing could hamper other designers’ creativity.
So, will Louboutin lose his trademark? If he does, will his shoes remain as identifiable and coveted as they have in the past? And will other brands that lean on specific colours to convey their values find the pigment seeping out of their brand identities?
As we prepared to publish, WWD tweeted: ‘The lawsuit between Christian Louboutin and rival YSL is on hold until the federal court of appeals decides on the district court’s ruling.’
Whatever happens, it will come at the end of a protracted legal battle. You might want to take your heels off for this one—it’s going to be a long hike to resolution.