Okay, Scarlett Johansson and Halle Berry, bare your soles. You, too, Beyonce and and Christina Aguilera. This is serious.
Christian Louboutin is trying to prove the China red soles he put on his shoes should be his alone. Yves Saint Laurent disagrees and won in court. Now the case is being appealed.
YSL's attorneys say "artists need the full palette of colors available...In order to compete fairly, we need red."
Louboutin's attorneys said "Louboutin turned a pedestrian item into a thing of beauty...We don't claim anything but the trademark as registered." Calling the soles of shoes a "pedestrian item" is certainly appropriate. But should a company be able to own a color?
If so, what are the precedents? I'm pretty sure Tiffany's must own the specific PMS color blue that they use. I know from my work in advertising that companies do own the particular colors they have had formulated just for them.
It's interesting how bottoms of shoes can become so important. For one thing, can't YSL choose their own shad of red? Does it have to be China red? Or would any red cause confusion?
The Federal Appeals judge, Victor Marrero, made the distinction between colors made to identify the brand, like the pink Owen Corning uses for its insulation, and where color "performs a creative function; it aims to please or be useful, not to identify and advertise a commercial source".
I guess UPS is safe with its brown. Maybe Louboutin should say its color is used to identify the source of its shoes. But would that detract from Mr. Louboutin's creativity and his customers' enjoyment of the shoes? Would fashion-conscious women no longer want them because red soles become the equivalent of the Nike swoosh?
It's a tricky business and I sympathize with Louboutin. They're the "red sole shoes". On the other hand, what if his competitors got the rights to blue shoes, or black, or purple, or sand?
Obviously I'm too indecisive on this to be a judge. I believe artists should be able to protect their work. I also believe there should not be this kind of restriction on creativity.
I think I'll just go and have my VW Beetle undercoated in China red.