Lawyering Up Louboutin
Christian Louboutin's immortal soles have often been stolen by copyists -- but the shoe designer extraordinaire is finally preparing to save them.
The actual shoe designs are, of course, unprotected by U.S. law. Louboutin's trade dress in the form of his signature red soles is another matter, however. Counterfeit Chic has wondered -- repeatedly -- why the designer would risk allowing such an effective signature to become generic by failing to take legal action.
It turns out that mere weeks after the first Counterfeit Chic comment on the subject, Louboutin's lawyers did indeed file an application with the U.S. Trademark Office. And last week, the mark consisting of "a lacquered red sole on footwear" was published for opposition, meaning that "[a]ny person who believes he would be damaged by the registration" has 30 days to speak up. Oh dear, Oh...Deer!
But this isn't the first time that Louboutin has tried to register his red soles. Back in 2001, the company filed a similar application but abandoned it without completing the process for reasons that are not revealed by the incomplete online file. One guess is that in the wake of the Supreme Court's decision in Wal-Mart v. Samara Brothers, 529 U.S. 205 (2000), Louboutin wasn't prepared to make the required showing of secondary meaning for his product configuration.
This time around, however, the application was accompanied by the kind of information as often found in a press kit or magazine interview as in correspondence with the Trademark Office. In Louboutin's words:
In 1992 I incorporated the red sole into the design of my shoes. This happened by accident as I felt the shoes lacked energy so I applied red nail polish to the sole of a shoe. This was such a success that it became a permanent fixture....
The shiny red color of the soles has no function other than to identify to the public that the shoes are mine. I selected the color red because it is engaging, flirtatious, memorable, and the color of passion. It attracts men to the women who wear my shoes....
Actually, this sounds like it has the potential for a very interesting functionality debate indeed, given that functional matter cannot be registered as a trademark. Perhaps competitors eager for a free ride are even now testing the heterosexual human male response to red bottoms. Of shoes, that is.
Overall, though, Louboutin presents strong evidence of the distinctiveness of his trade dress in the eyes of his well-heeled clientele -- which bodes well for his officially becoming its sole proprietor.