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NEW YORK — The color red just got some support from the color blue.
This story first appeared in the October 25, 2011 issue of WWD. Subscribe Today.
Tiffany & Co. filed a brief Tuesday in support of Christian Louboutin’s appeal to reverse an earlier decision that denied the brand a preliminary injunction and questioned the validity of its red-sole trademark.
Tiffany’s filing, called an amicus curiae, focused on the notion that a color can be trademarked. The International Trademark Association also filed a motion late Monday for an extension of time to file a brief in support of Louboutin.
“We are enormously pleased that Tiffany has weighed in,” said Louboutin attorney Harley Lewin, of McCarter & English LLP. “Tiffany has not only agreed with our arguments, but it also put forth arguments that strengthened the case and made the point that the [earlier] decision should be reversed.”
In April, Louboutin sued Yves Saint Laurent in New York federal court, claiming that an all-red pump created by the rival house violated its red-sole mark that it obtained in 2008.
Louboutin asked the court to stop the sale of YSL’s shoe while the case was under review. But in August, presiding Judge Victor Marrero denied that request and instead questioned Louboutin’s mark, noting that no one designer should have a “monopoly” on any color. Louboutin then filed an appeal, which is currently under review.
“Tiffany has a reason to be concerned,” said Susan Scafidi, director of Fordham University’s Fashion Law Institute, who explained that if Louboutin’s mark is eventually canceled it would “weaken color trademarks across the world of fashion.”
Enter Tiffany, which registered its signature blue trademark for packaging in 1998. While there is a distinction between Louboutin’s mark and Tiffany’s mark — one is for “product packaging,” the other for “product configuration” — Scafidi said based on the “broad nature” of Judge Marrero’s ruling, there may be some cause for concern.
“Tiffany is not taking sides in this dispute,” said Tiffany attorney Jason Jones, of Fross Zelnick Lehrman & Zissu PC, the firm coincidentally responsible for registering Louboutin’s red-sole mark. “We are only trying to assure that this area of the law is not disturbed by an overbroad decision in the lower court.”
But Monday’s filings didn’t faze YSL attorney David Bernstein, of Debevoise & Plimpton LLP.
“As we’ve noted before, we think Judge Marrero was exactly right in denying Louboutin’s request for a preliminary injunction, and fully expect the Court of Appeals to agree,” he said. “We look forward to responding to Louboutin’s and Tiffany’s briefs in due course.”