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If the red shoe fits, sue your competition
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The Toronto Star- Can the colour red be trademarked?
That’s the question at the heart of a legal battle between French shoemaker Christian Louboutin, designer of the iconic, sky-high, red-soled shoes worn by celebrities like Oprah and Angelina Jolie, and Yves St. Laurent, the fashion powerhouse launched in 1962 that now sells everything from lipstick to luggage and occasionally, red-soled shoes.
Louboutin tried to slap YSL with an injunction in April, to prevent the company from selling “infringing footwear” with red soles, including a platform shoe that is red all over.
“YSL is seeking to take unfair advantage of the enormous goodwill and brand recognition in the Red Sole Mark that we have developed over the past two decades,” according to legal documents filed by lawyers representing Louboutin in a New York City district court in April.
YSL countered by pointing out that red outsoles were popular in the French court of Louis XIV in the 1600s, that Dorothy wore red shoes in the Wizard of Oz in 1939, and YSL has made shoes with red on the sole as far back as the 1970s and every year since 2003.
“Louboutin’s attempt to monopolize the use of red outsoles, even to the extent of claiming that no other designer can make an all-red shoe is unsupported by law, defies common sense and would unduly restrict the design options available to competitors in the market,” according to YSL’s counterclaim.
Both brands sell for upwards of $600 a pair.
Louboutin is claiming $1 million in damages from YSL. In return, YSL is seeking damages in a counterclaim, alleging that Louboutin pressured retailers to return the red-soled YSL shoes and to stop selling all YSL footwear.
District court judge Victor Marrero refused to grant Louboutin the injunction, waxing poetic about the role of colour in art and fashion.
“Suppose that Monet, having just painted his water lilies, encounters a legal challenge from Picasso. ... Picasso alleges that Monet, in depicting the colour of water, used a distinctive Indigo that Picasso claims was the same or too close to the exquisite shade that Picasso declares is ‘the colour of melancholy,’ the hallmark of his Blue Period,” Marrero wrote in his decision.
Allowing one artist or designer to appropriate an entire shade would unduly hinder not just commerce and competition, but art as well, according to Marrero.
Louboutin has appealed the decision.
The claim and counterclaim are rife with insights into the competitive world of luxury fashion.
In their original claim, lawyers for Louboutin, who lives in Paris, described the lengths he went to propel Louboutin into the celebrity stratosphere and keep it there.
To maintain demand, Louboutin often will not fill a vendor’s entire order, preferring instead to keep the product in short supply, making it “sold out” from time to time.
“Consumers thus watch carefully for all deliveries and often are on waiting lists for new product,” according to the court documents.
Rather than pay for advertising, Louboutin lends shoes out for fashion shoots and to celebrities appearing in only the best magazines — publications are screened to ensure they have the right readership, photo content and advertising.
Louboutin press offices around the world maintain a large inventory of shoes in every colour, size and model, in order to fill requests from approved celebrity stylists and media in one or two days. All shoes must be returned.
“Plaintiffs have made the conscious effort to keep Louboutin footwear as a recognized luxury item and thus away from what is commonly known as mainstream marketing,” reads the lawsuit.
Louboutin footwear has become synonymous with luxury fashion, and as a result, is not only coveted by people “who can readily afford them,” but also by “the price-conscious.” The red flash of a Louboutin sole, the lawsuit claims, signals that the wearer has “arrived.”
The brand received a huge boost in 2005 when the five stars of Desperate Housewives wore Louboutins on the cover of Vanity Fair. Louboutins were also featured in the Sex in the City series and movies. Oprah often wore them on her talk show. Jennifer Lopez released a single called “Louboutins” in 2009, and yes, she wears them.
Louboutin says he launched his first shoe store in 1991, came up with the idea of a lacquered red sole in 1992 and trademarked it in 2008. YSL alleges the trademark was fraudulently obtained because Louboutin claimed the red lacquered sole was exclusive to his shoes when in fact, red soles have been used by other shoemakers.
Sarah Borg, assistant-curator at the Bata Shoe Museum says Louboutin’s red soles are iconic, but that doesn’t mean he should have the exclusive right to the idea.
“If he gets red soles, then who gets to only do black soles, or only do blue soles? I think it’s a slippery slope,” she said.
Borg compares the red-sole fashion statement to the reign of Louis XIV, who decreed only members of his French court could wear shoes with red heels.
“It’s not new as a concept to enforce elitism, which is what he’s doing,” Borg says, of Louboutin.
David Markowitz, president and CEO of Davids Footwear, says Louboutins are one of his most popular lines. The red soles in the window beckon women into the flagship store at 66 Bloor St. W. at Bay St. Some save for weeks to buy Louboutins, he says.
“My opinion is that the red sole is very similar to a logo or a brand name and Christian Louboutin developed the red sole and created the buzz about it. It’s their concept, they deserve ownership.”
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