Can a color be trademarked? The answer is it could be. Trademark registrations have been granted for colors in the past. (
See here for the USPTO's standard). But it appears, for shoe designer Christian Louboutin, the answer is…no. Louboutin has been making shoes for the last few years with a trademarked “lacquered red sole.” The ubiquitous soles have turned up on many a red carpet, on the feet of many a celebrity. In fact, as CNN.com reports, even Jennifer Lopez has a song that mentions Louboutin’s in the lyrics. But recently, fellow shoemaker and competitor Yves Saint Laurent announced a new line of shoes featuring shiny red soles, and began production. Not surprisingly, the shoes sold well. But when Louboutin sued Laurent for trademark infringement and sought an injunction, things got sticky. Can something as simple as a color be trademarked? Well, Louboutin did in fact obtain a trademark registration for the red heels in 2008. But according to last week’s decision by a U.S. District Court Judge Victor Marrero in the Southern District of New York, it can’t. At least not in this case. The decision was based on the idea that any rule that denies an artist the use of a certain color in his or her craft is too restrictive. Specifically, Judge Marrero states, “Because in the fashion industry color serves ornamental and aesthetic functions vital to robust competition, 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 public recognition in the market to have acquired secondary meaning.”
Although, it seems unlikely that Laurent just happened to start making red soled shoes a couple years after Louboutin had a hit with them. Both parties are scheduled to meet for a case management order this Wednesday. I think Louboutin clearly has attained a high level of secondary meaning for the public to associate the red heals strictly with Louboutin's and not other designer shoes. The outcome of this case will be a significant one for designers and artists of many types, no doubt.
But what about companies that don’t want a .xxx web site created, using their trademark or name? ICANN is offering a “sunrise period” to companies, that allows them, for a limited time, to opt out of ever having a .xxx version of themselves online. The deadline to opt out is October 28, 2011. After that deadline, the name of any company that has not opted out will be fair game for a .xxx web site. Unfortunately for anyone wishing to opt out, there is a fee to do so. ICANN will charge between $300 and $350 to opt out of the .xxx domain names.
