New York Trademark Lawsuit: Can a Color be a Trademark?

A trademark is often thought of as a word, phrase or logo used as an identification mark for distinguishing goods and services of a particular manufacturer or seller, however, under extreme circumstances, certain characteristics like the color or particular shape of a product may also be afforded trademark protection. This may happen when the color or shape is used distinctively on a product in an unconventional way.

In a recent trademark lawsuit, the New York Court of Appeals declared that the French shoemaker Christian Louboutin's distinctive red soles deserve trademark protection against red-soled shoes made by another manufacturer. The company, however, cannot exactly call the color "red" its own. The trademark protection now only allows the red sole if it is in contrast to the color of the adjoining upper part of the shoe. Originally, a lower court decided against the French shoemaker, saying that a color can never be afforded trademark protection, especially in the fashion industry. The Court of Appeals has overturned that decision.

Christian Louboutin is a well-known brand of luxury shoes that many Hollywood starlets like Sarah Jessica Parker, Scarlett Johansson and Halle Berry wear. Louboutin has been applying glossy red color to the outsoles of women's shoes for almost two decades now.

The practice area of intellectual property rights in general, and that of trademark law in particular, are very complex. Owners of intellectual property rights must have a good understanding of their rights. They must protect their trademarks aggressively. If not protected, the trademark may fall into the public domain. In other words, if the owner fails to protect its mark, the public may stop identifying the goods and services of the owner with that trademark.

Source: Star Tribune, "NY appeals court finds French shoemaker's red soles are entitled to trademark protection," Larry Neumeister, Sept. 5, 2012

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