Fashion and copyright backfire

Copyright and fashion is a murky area, one tackled by many a great mind with little headway on the issue actually being made. It today transpires that it’s not only a murky area, but also one that can be dangerous for fashion houses to pursue.

Take the case of Louboutin vs Yves Saint Laurent, a case currently before the courts that sees the former accusing the latter of copying its signature red soles.

The outcome? The case may pave the way for every company, from the top end down to the high street retailer, to be able copy the Christian Louboutin red sole with impunity.
christian louboutin

A judge declined on Wednesday to grant a preliminary injunction requested by Christian Louboutin against Yves Saint Laurent, which was accused of trademark infringement for shoes that featured red soles similar to those of Louboutin’s. The decision not only cleared the way for Saint Laurent to continue producing its shoes, but also seemed to give coverage to other shoe manufacturers that may want to add a scarlet underpinning to theirs.

Judge Victor Marrero of Federal District Court in Manhattan ruled that the trademark Louboutin obtained in 2008 for its “lacquered red soles” — on shoes that can sell for more than $1,000 a pair — was “overly broad” and most likely not protectable.

“Because in the fashion industry color serves ornamental and aesthetic functions vital to robust competition,” Judge Marrero ruled, “the court finds that Louboutin is unlikely to be able to prove that its red outsole brand is entitled to trademark protection, even if it has gained enough protection in the market to have secondary meaning.”

The above picture comes from Louboutin’s autumn / fall 2011 ad campaign – you can see more photos from the series by clicking on the picture.

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