Seeing red over color is no small wallet matter: “In the 20 years since Christian Louboutin made his first pair of ladies’ shoes with shiny red-lacquered soles, his vertiginously heeled, sexy, colourful and nearly unwearable creations have become an object of desire for celebrities like Ms Lopez, Angelina Jolie and Madonna, who even lets her daughter Lourdes wear a metal-studded number. Today the puckish Frenchman is the biggest star in high-fashion shoe design, selling about 240,000 pairs a year in America at prices ranging from $395 for espadrilles to as much as $6,000 for a “super-platform” pump covered in crystals. The revenue of his company, Louboutin, is forecast at $135m this year.
Yet all this could be at risk, says Louboutin’s lawyer, if Yves Saint Laurent (YSL), another fashion firm, continues to gain the upper hand in a legal dispute between the two companies. …….”The judge has made up his mind that no fashion designer should be allowed a monopoly on colour because as artists they all need to be able to use the full palette. To make this point, he imagined Picasso taking Monet to court over the use of blue in his painting of water lilies, because it was the same or close to the distinctive shade of indigo, the “colour of melancholy” he used in his Blue Period. Moreover, unlike patent law, trademarks are never about granting monopolies, argues David Bernstein, a lawyer for YSL at Debevoise and Plimpton. Trademarks are merely the right to indicate the origin of a product or service.Susan Scafidi of Fordham University School of Law in New York says that the judge sidestepped the important question by boiling the argument down to aesthetic functionality. The true challenge of the case, says Ms Scafidi, is to determine when the use of colour on a portion of apparel is a design element and when it is a trademark. It will now be the job of an appeal court to rule on the matter. And if Louboutin loses again, the company says it will take its case all the way to the Supreme Court.”