Update: Louboutin's Red Sole Ruled "Functional" So Use As A Trademark Is Suspect.
Recently we reported that the shoe of choice for fashionistas, Louboutin,
had filed an infringement action against a competitor because the competitor was selling shoes with red soles. Louboutin had obtained a trademark for such red soles. In an opinion denying Louboutin's request for a preliminary injunction, the Court held that no injunction would issue because it was unlikely that Louboutin would be successful in the trial on its merits because the red soles were "functional". The Court found this in part because Christian Louboutin, himself, testified (perhaps unwisely) that the red soles provided "energy", and were "engaging" and "sexy". This, the Court found, was not designed to identify the shoes but provided "function" and therefore was not subject to trademark. So, red soles, along with designs on toilet paper and Betty Boop are functional.
The Court also based its decision upon the thought that chaos would result if a single color was granted as a trademark in the fashion industry. Since Louboutin's registered trademark is for a "red' sole, the Court wondered just how red would red have to be to be infringing and would other designers race to trademark all the other colors.
Louboutin's trademark is therefore likely to be cancelled, depending on Louboutin's next legal move. I think you might be seeing some red soled Low Bootawns in Walmart soon.
