Shoe designer, Christian Louboutin’s red lacquered soles might be instantly recognisable by anyone with even a remote interest in fashion, but there are now doubts as to whether the signature sole is legally protectable.

On 10 August 2011, a New York judge refused injunctive relief to Christian Louboutin S.A. in proceedings alleging that Yves Saint Laurent infringed its federally-registered red sole trademark. YSL sought cancellation of the trademark arguing that it should never have been registered in the first place as it is a commonly used ornamental design feature in footwear. The court heard that red soles were worn by King Louis XIV in the 1600s and also by Dorothy in The Wizard of Oz. YSL also claimed that the registration was secured through fraud.

Despite finding that the red lacquered sole is easily recognisable, the judge expressed “serious doubts that Louboutin possesses a protectable trademark” and refused to order YSL to stop selling the shoes in question pending the full hearing of the matter. The judge noted that “in fashion markets colour serves not solely to identify sponsorship or source, but is used in designs primarily to advance expressive, ornamental and aesthetic purposes”. He was clearly concerned about the impact on the fashion industry of allowing a designer to effectively monopolise a particular colour, stating that this would “unduly hinder not just commerce and competition but art as well”. Louboutin has announced that it is appealing the decision.

This preliminary judgment will be of interest to those in the fashion industry, not least the Wexford transition year student who recently received the National Student Enterprise Award for her online business selling stick-on red soles to “Louboutin-ise” otherwise ordinary high-heeled shoes. 

Contributed by Louise Butler, Carol Plunkett.

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