Blue Is The New Red (Or Is Red The New Blue): Update On Louboutin's Lawsuit Against Yves Saint Laurent

In a more recent development in the ongoing battle between high end shoe company Louboutin and high end fashion company Yves St. Laurent, Tiffany & Co. has filed papers in court in support of Louboutin. This case involves Louboutin's lawsuit against Yves Saint Laurent for use of the color red on the bottom of shoes. Tiffany's brief (here's a copy Tiffany for Louboutin.pdf) is filed in support of Louboutin's efforts; previously the U.S. District Court hearing the case ruled that Louboutin's iconic red soles don't deserve trademark protection.

In what is really no surprise at all, Tiffany is interested in the resolution of this case because it has trademarked the color blue, robin's-egg blue to be specific, for its boxes. Interestingly, Tiffany has recently begun using its "Tiffany blue" on its fashion accessories as well, including gloves, scarves, and handbags. In its amicus brief, Tiffany urges the Second Circuit to reject a per se rule against granting trademark protection to colors in the fashion industry.

Tiffany argues that the U.S. District Court's ruling carved out an exception to the protections afforded under the Lanham Act and by the Supreme Court. As mentioned in a previous post, the Supreme Court, as well as the Lanham Act, has made it clear that colors can be protected by trademark law. According to Tiffany, the U.S. District Court's decision did not use the correct trademark analysis when determining whether the color red could be trademarked for Louboutin's heels. Instead of adopting a broad rule that a single color is never subject to trademark protection in the fashion industry, the court should have, Tiffany argues, focused on whether Louboutin's red soles had acquired secondary meaning. Further, Tiffany noted that the judge did not even mention the likelihood of confusion issue.

This is definitely an interesting case and one that I am continuing to follow!

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