The battle of the red-soled shoes goes on and Yves Saint Laurent — which has been trading legal blows with Christian Louboutin on the issue since April — on Tuesday picked up the support of 11 law professors.
The professors, who research, write and teach trademark law and related topics, filed an amicus brief with the Federal Court of Appeals for the Second Circuit and said Louboutin’s arguments to protect a single color in fashion “should be rejected in order to preserve freedom of innovation and competition.”
Louboutin sued YSL in the Southern District of New York in an effort to protect its 2008 red-sole trademark, but in August the federal judge hearing the case denied Louboutin an injunction that would have kept YSL from selling red-soled shoes.
The ruling endangered Louboutin’s trademark and the company appealed, garnering in October support of Tiffany & Co., which has a trademark for its signature blue packaging. Louboutin has argued that the color is vital to the brand’s DNA and that infringing on its trademark would cause irreparable harm.
YSL answered the appeal last week and said Louboutin had not shown irreparable harm.
The professors said Louboutin and its supporters are arguing against the doctrine of “aesthetic functionality” which prevents companies from using “trademark as a kind of back door to perpetual patentlike protection for attractive but non-novel product features.…[If] the relevant consumers want a product feature because it is especially attractive, then that feature is not a proper subject of monopolization by a single producer — unless it meets the demanding novelty requirement of design patent.”
The professors noted: “A woman who buys red shoes is doing so for a reason — red shoes have a particular meaning to her, and to others, that cannot be supplied or even approximated by shoes of a different color. Given the substantial creativity involved in both fashion design and fashion consumption, courts should not lightly allow one particular competitor to monopolize particular fashion submarkets.”
The brief was submitted by Robert Brauneis and Roger Schechter of George Washington University; Stacey Dogan of Boston University; Christine Haight Farley of American University-Washington College of Law; Laura Heymann of William & Mary; Greg Lastowka of Rutgers School of Law-Camden; William McGeveran of the University of Minnesota; Mark McKenna of Notre Dame; Viva Moffat of the University of Denver; Christopher Sprigman of the University of Virginia, and Rebecca Tushnet of Georgetown University.