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Intellectual Property

The Other Shoe Drops

By Ashlee Froese of Gilbert's LLP

Zut alors! 

Christian Louboutin is not having a good year with the judicial system and must be seeing red! 

CanadaFashionLaw has extensively covered Christian Louboutin's dispute with Yves Saint Laurent in the US, with respect to YSL's use of the red-soled shoes.  Christian Louboutin suffered a blow when he was denied a preliminary injunction against YSL's use of the red-soled shoes.  The decision went a step further and called into question the registrability of Christian Louboutin's trade-mark or whether any color can be registered in the fashion industry.  (This decision is currently being appealed).  Needless to say, some parties were less than delighted with the decision and we saw Tiffany and INTA put in their two cents.

Malheuresement, Christian Louboutin has suffered another blow.  Christian Louboutin took high-street chain store Zara to court over its use of red-soled shoes in France.  Although Christian Louboutin initially won, Zara appealed on the basis that Christian Louboutin's trade-mark registration was too vague (i.e. the registration did not include a Pantone color claim).  Christian Louboutin was unsuccessful in appealing Zara's victory.  The French court of appeal recently issued its decision in favour of Zara.  Adding insult to injury, Christian Louboutin was also required to pay some of Zara's legal costs as compensation.  This decision does not extend beyond France.  In the meantime, Christian Louboutin is attempting to mitigate any further damage to its brand by filing a new trade-mark application that has a narrower and more specific color claim. 

Christian Louboutin's struggle to maintain its brand monopoly has piqued a lot of interest from lawyers, consumers and the media. CanadaFashionLaw has had the opportunity to discuss this on many occasions and is always fascinated at how polarizing the debate is.  Whereas some believe Christian Louboutin's position to be ridiculous (generally, these are not trade-mark professionals or fashionistas), others strongly believe that Christian Louboutin is "famous" for its red-soled shoes and should reap the benefits.  To a large extent, this goes back to the age-old debate: 

Is fashion art? 

Or is fashion innately functional? 

In an industry where trends are a central concept, is infringement acceptable?  If one shoe is sold at the $1,000 starting point, can there really be confusion with a similar shoe that is sold at the $50 starting point?  If the function of intellectual property laws is to reward ingenuity, why is fashion design piracy more acceptable? 

CanadaFashionLaw wants to know where you stand. 

View more from Canada Fashion Law and @BrandFashionLaw

(C) Ashlee Froese, 2011. All rights reserved.

The contents herein are for informational purposes and do not constitute legal advice. It is strongly recommended that you seek a professional legal opinion in the event of a legal dispute.


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