Court Denies Louboutin Preliminary Injunction: Holds Fashion Blind to Single Color Marks

by Sheppard Mullin Richter & Hampton LLP
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On August 10, 2011, Judge Victor Marrero denied Christian Louboutin S.A.'s motion for a preliminary injunction to enforce its U.S. trademark (Registration No. 3,361,597) for "lacquered red soles on footwear" covering "Women's High Fashion Designer Footwear" in International Class 25. The Court held that "[b]ecause 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." The decision not only concluded that the Lanham Act does not "exten[d] protection to a trademark composed of a single color used as an expressive and defining quality of an article of wear produced in the fashion industry," but also established a new precedent by concluding that trademark protection under the Lanham Act for the fashion industry differs from that in other industries.

In his thirty-two page decision, Judge Marrero compared fashion designers to painters and noted how creativity for both is dependant upon using color as "an indispensable medium" that "plays a unique role." The Court observed that: "The law should not countenance restraints that would interfere with creativity and stifle competition by one designer, while granting another a monopoly invested with the right to exclude use of an ornamental or functional medium necessary for freest and most productive artistic expression by all engaged in the same enterprise."

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