Fashion and IP Roundup – Nontraditional Marks and the Careful Selection of Forum, Infringing Articles and Even Media By Brand Owners Can "Make or Break" the Winning Strategy

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Three recent skirmishes involving fashion brand owners and their non-traditional marks provide strategy tips for those looking to defend their brands against alleged copycats. This past year, the “red sole” trademark owned by designer Christian Louboutin, the trade dress of the “Clyde” bag by designer Monica Botkier, and the Adidas “four stripe” design on sneakers were all favorably enforced against perceived infringers.

1. The Red Sole Case.

In Christian Louboutin S.A. v. Yves Saint Laurent America Holding Inc., the Second Circuit allowed trademark protection for the Louboutin red sole, finding that “it is the contrast between the sole and the upper [part of the shoe] that causes the sole to ‘pop,’ and to distinguish its creator.” At the same time, it concluded that designer Yves Saint Laurent’s monotone red suede pump (including a red colored sole as well) did not infringe Louboutin’s mark. In overturning the lower court decision against Louboutin, which denied Louboutin’s motion for a preliminary injunction against YSL and held that Louboutin was not entitled to corner the market on a color, both sides claimed “total victory” in the dispute.

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