YSL drops 18-month lawsuit against Christian Louboutin as both sides claim they won battle of the red-soled shoes | Daily Mail Online red louboutin
YSL drops 18-month lawsuit against Christian Louboutin as both sides claim they won battle of the red-soled shoes
Yves Saint Laurent
has dropped its lawsuit against Christian Louboutin, finally closing a
drawn-out case over who owns red-soles, for good.
The most recent court
decision satisfied the french
fashion house, which allows YSL to make monochromatic red shoes, where both
the soles and uppers are red.
2008 trademark protection over the red sole alone will continue to be upheld, a decision which lead YSL to cancel its six counterclaims against Louboutin.
Battle: The New York Court of Appeals ruled that the distinctive red soles of Christian Louboutin shoes are entitled to trademark protection
Red rival: YSL say they are 'extremely
satisfied' that they can continue to produce 'monochrome' versions of
their Tribtoo platform pumps
In court documents filed Tuesday, YSL
said it 'has decided that these claims are no longer worth pursuing...
thus resolving what remains of this litigation and allowing the parties
to close the book on this litigation and refocus their attention on
their respective fashion creations.'
The case began in April 2011, when Christian Louboutin sued YSL for using red soles on the bottom of its red pumps.
Legs eleven! Taylor Momsen shows off her endless slim pins in a tight fitting gold dress and skyscraper heels
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Louboutin demanded $1million in damages, which was based on a trademark granted to Louboutin in 2008 for red soles.
Yet the case was subsequently
referred to the appeals court after a New York district judge ruled that
Louboutin had exclusive rights to red soles, but dismissed claims that YSL's all-red shoes were an infringement of Louboutin's trademark.
'YSL has decided to refocus energies on its business and creative designs'
Last month, the case was mostly resolved when the Court of Appeals ruled that Louboutin’s trademark should not be enforceable on red-sole shoes with matching red uppers.
YSL filed a request to drop the rest
of its counterclaims without prejudice against Christian Louboutin,
according to a brief issued by YSL's lawyer, David Bernstein.
'Without prejudice means we have the
right to re-file claims to cancel the trademark if Louboutin challenges
us again with respect to our designs,' he told WWD.
Both sides claim victory.
Seeing red: In April 2011 Christian Louboutin sued YSL for using red soles on the bottom of its red pumps, demanding $1million in damages
Victory: Last year Zara won the right to sell their red-soled heels (left) which Louboutin said copied their Yo Yo slingbacks (right)
Louboutin's lawyer, Harley Lewin, telling Reuters that the ruling enables the company
'to protect a life's work... embodied in the red sole found
on his women's luxury shoes'.
And in a statement released Tuesday evening, Louboutin added that the
ruling 'reaffirm[s] the validity of our trademark rights on the red
sole in the U.S. [which] deprived Yves Saint Laurent of its claim for
cancellation of our trademark.'
Mean, Mr Bernstein, YSL's lawyer,
told WWD: 'Now that the Court of Appeals has definitively ruled for Yves
Saint Laurent and has dismissed Christian Louboutin’s claims, Yves
Saint Laurent has decided to end what was left of the litigation and
refocus its energies on its business and its creative designs.'
Christian Louboutin has applied glossy vivid red to its soles since 1992, the iconic shoes selling for upwards of $700 a pair.
year Louboutin sued lost a lawsuit against Spanish brand Zara after
claiming that an open- toed red-soled shoe it was selling for £40 was
similar to its Yo Yo style.
French court ruled that Zara’s cut-price shoe could not be confused
with that made by the high-end designer and the Cour de Cassation – the
final court of appeal – upheld the decision.
A LEGAL FIRM EXPLAINS THE COPYRIGHT RULING
law recognises that, in the right context, a single colour can become
distinctive of particular goods or services - such as purple for
Cadbury's chocolate, or green for BP service stations.
it is all about context - in the right situation, red might be
associated exclusively with London buses, but nobody would think a red
pillar box was connected with London buses.
the New York court held that, in the right situation, a lacquered red
sole on footwear was associated exclusively with Christian Louboutin and
they were entitled to trade mark protection - but it also held that it
was the flash of the red sole (on a shoe of a contrasting colour) that
was an important factor in making this association.
the New York court held that Christian Louboutin could not prevent YSL
from selling their monochrome red shoe (which, even though it had a red
sole, did not give the impression of a shoe with a red flash).
as an overall comment, a single colour such as that used for the sole
of a Christian Louboutin can distinguish the goods from those of
competitors - but whether it will depends on the context in which it is
used. In this case, as part of a monochrome red shoe, it was not
Ian Wood, Partner in Intellectual Property at Charles Russell LLP
- Case Closed for YSL & Louboutin?
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Louboutin & Lessons Learned
Posted in Branding, Copyrights, Infringement, Keyword Ads, Law Suits, Marketing, Non-Traditional Trademarks, Search Engines, Sight, Trademarks, USPTO
As promised, here are some further thoughts, lessons learned, and remaining unanswered questions concerning the recent and long-anticipated decision of the Second Circuit Court of Appeals in Christian Louboutin S.A. v. Yves Saint Laurent Am. Holding, Inc.
Lessons Learned for Marketing Types:
- Single color trademarks may be owned, registered, and protected when they are distinctive and have acquired “secondary meaning” — even in the fashion industry.
- Know the inherent or implied limitations in your non-traditional trademark rights and registrations, they may become express limitations when a court gets involved.
- Adopt an intelligent enforcement strategy, especially when it comes to non-traditional trademarks, since there can be a judicial undercurrent of skepticism about the validity of those rights and serious questions about whether granting the requested relief will significantly hinder competition in the relevant market.
- If you own the particular placement and position of a non-traditional trademark on an item, don’t assume it is broad enough to stop all uses across the entire surface of an item.
- While non-traditional trademarks are a wonderful way for brand owners to emotionally engage their consumers and cement strong relationships, it must not be forgotten that your competitors have the same options before them, making critical the need for appropriate due diligence when designing even purely ornamental and aesthetic features of a product.
- Consistent with the importance of adopting an intelligent enforcement strategy, as Catlan wrote last week, pick your enforcement targets carefully, and I’d add: pick your forum carefully, as there continues to be “forum shopping” opportunities given the different legal interpretations of the Lanham Act followed by various courts around the country.
Further Thoughts for Trademark Types:
- While I’m all in favor of formally narrowing the scope of Louboutin’s federal trademark registration to make express the limitation and requirement of visual contrast between the red outsole and the remaining elements of women’s high fashion shoes (a limitation I had argued was implied, given the specimen of record), I’m left wondering whether the direction to the USPTO to implement the limitation under Section 37 of the Lanham Act (15 U.S.C. 1119) should have come from the U.S. District Court, not the Court of Appeals.
- Clearly, the assigned three judge panel of the Second Circuit Court of Appeals (Circuit Judges Cabranes, Straub, and Livingston) has taken a special interest in this case, removing from further consideration by the District Court anything other than Yves Saint Laurent’s counterclaims (discussed below), and directing “[i]n the interest of judicial economy, either party may restore jurisdiction to this Court to consider whatever arguments remain or arise relating to this case by sending a letter to the Clerk of this Court within 14 days of the District Court’s final judgment. Any such proceedings will be assigned to this panel.”
- This panel of the Second Circuit Court of Appeals seemed to go out of its way to prevent the District Court from entertaining any further arguments from Louboutin in pursuing its non-preliminary judgment claims against YSL; why not affirm the denial of the preliminary injunction, set the District Court straight on the law, direct it to have the USPTO amend Louboutin’s registration, but then remand for further proceedings consistent with the order? I’m sensing a trust issue, wearing the clothes of “judicial economy” — what do you think?
- The Court of Appeals disposed of Louboutin’s Lanham Act claims “because the red sole on YSL’s monochrome shoes is neither a use of, nor confusingly similar to, the Red Sole Mark.” — yet, in a couple of places in the decision, it purports to not address and expresses no need to address the ultimate question of likelihood of consumer confusion.
- Deborah Peckham of Lex Indicium writes: “In essence the court is saying that there can be no confusion between use of single color contrasting mark on an outsole and use of the identical color in a monochromatic treatment that includes the outsole. But do we really know that consumers could not be confused? Couldn’t they?”
- YSL’s first counterclaim is for cancellation of Louboutin’s red sole trademark registration on three grounds: (a) lack of distinctiveness, (b) functionality, and (c) fraud — based on the Second Circuit’s ruling, presumably it is only leaving the District Court to address functionality and fraud, since it agreed with the District Court on secondary meaning.
- YSL’s second counterclaim is for damages for (a) tortious interference with business relations and (b) unfair competition; it will be interesting to see whether these damage claims were asserted merely for leverage or whether they actually will continue now that Louboutin’s trademark infringement claims are dead.
- What will others do with this surprising bit of dicta from the Second Circuit?: “It is arguable that, in the particular circumstances of this case, the more appropriate vehicle for the protection of the Red Sole Mark would have been copyright rather than trademark.”
- Just because an artistic and decorative belt buckle might be conceptually separable from the subsidiary utilitarian function (and thereby subject to copyright protection), doesn’t mean that the placement of a single color on the sole of a women’s shoe is subject to copyright protection, right? I’m not seeing a valid copyright claim, are you?
- When will the Supreme Court decide a case that addresses trademark aesthetic functionality, beyond dicta, so that the growing division among the various circuit courts can be resolved?
- Will the Second Circuit’s reliance on YSL’s failure to use — in its monochrome red shoes — Louboutin’s contrasting red sole mark, encourage other defendants in non-traditional trademark cases to seek early dismissal on a non-use basis, as Google did so successfully, in the early days of the keyword buy cases. If so, will the non-use defense be successful? And, if so, will it be successful long term? By way of example, Google is no longer able to regularly short-circuit the keyword trademark cases with the non-use defense, it is now having to face and address the ultimate question of likelihood of confusion, see Rosetta Stone v. Google.
- Last, what will be the extent of protection available to Louboutin, assuming his registration, now with the built-in color contrast limitation, survives YSL’s counterclaim for cancellation? What if another’s shoe is not 100% monochrome? What if it is almost all red, including on the outsole, but there are some black accents including a black border around the edge of the outsole border — is that enough contrast to warrant relief and protection? It’s one thing to impose a limitation of contrasting color so the red outsole can “pop” — it’s another to predict what the limits on the narrowed right will be and it seems unlikely that the right would or should be limited to purely identical uses, given the ultimate multi-factor test of likelihood of confusion.
It's a story that seems like an industry urban legend, and yet it's true: When Christian Louboutin designed one of his first shoes in 1992, he thought it was missing something—so he grabbed his assistant's red nail polish out of her hands and painted the sole that now-signature shade of scarlet. Now, the tale comes full circle as the king of high heels releases his latest nail lacquer, called Loubi Under Red, meant to be applied to the "soles" of your nails (as in, underneath). But it's not just the launch of a new nail polish: We've officially been introduced to a vampy new kind of nail art. Click through to find out how you can match your manicure to your favorite pair of Louboutin heels.Nails by Teresa King at cityMANI, which now offers a Christian Louboutin nail package for $50.
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How To Give Yourself a Louboutin Manicure
2 of 8
Note: This manicure works best on long nails—the better to show off that flashy red! In the interest of really showing a clear tutorial, we opted for acrylic nails this time around.
Apply a base coat of clear polish. (No need to apply the coat underneath your nails.)
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Apply two coats of black polish.
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Let dry for a few minutes.
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Flip your hand over: It’s time to apply that Louboutin red. The key to a mess-proof under-mani is to keep a fairly dry brush—just a tiny bit of color is necessary. Try holding down the skin on each finger as you apply. Carefully brush it on, but don’t worry about getting it on your skin. You’ll clean that up in a minute. Let dry for a few minutes.
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Have a Q-tip and either a bamboo cuticle pusher or another Q-tip with most of the cotton removed on hand. To get rid of any red polish on your skin, dip your tool of choice in nail polish remover and gently brush off the red, while trying to avoid removing the polish that’s underneath your nail. Tip: Holding down the skin on each finger as you do this makes it a lot easier!
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Finish off with a clear top coat. No need to apply it underneath your nails. Instead, as you paint the top of each nail, swipe the polish along the edge as well.
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Your now have a vampy Louboutin mani to match your stilettos.
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