Can A Fashion House Trademark a Colour?

by Hermione Avila - Paralegal

23 June 2012, filed under Trademarks

Had you ever thought about whether a company can trademark a colour? Well this subject has been very much at the forefront of both the legal and fashion worlds. Christian Louboutin, the fashion designer behind the famous high heeled shoes has recently brought trademark infringement claims against both Yves Saint Laurent and Zara for using a red sole on their shoes which Louboutin claims creates the “iconic” image which his shoes are so well known for. This is known as “secondary meaning” – someone sees a flash of red sole and immediately knows it’s a Louboutin! Louboutin claims that the only reason their shoes have a red sole is to identify their brand. However, Yves Saint Laurent have countered that Louboutin himself has admitted that the red sole is also for aesthetic purposes.

There is a precedent case that states that a colour can be registered as a trademark as a colour “can act as a symbol that distinguishes a firm's goods and identifies their source, without serving any other significant function." (Qualitex v. Jacobson Products 1995 – US Supreme Court).

Unfortunately, although most people would undoubtedly agree that the red sole certainly has “secondary meaning”, Louboutin lost his case against Yves Saint Laurent and there has been similar failures against Zara. Whilst Louboutin still owns the trademark that was awarded to him in 2008, the two cases he has recently lost in relation to trademark infringement will likely mean that more high street stores will release red soled shoes – Louboutin even had to pay Zara £2,000 in costs.

When Louboutin spoke in Court he gave the following reasons for putting a red sole on his shoes “sexy” “attracts men” and “gives energy”. Clearly none of these arguments concur with the “secondary meaning” that his legal team were relying on to win the YSL and Zara cases. Additionally, the Judge stated that the original trademark application was not specific enough, being vague on what shade of red Louboutin wished to trademark, whether it be on a specific shoe (a heeled shoe for instance).

The Judge stated that trademarking a colour can be done but it is incredibly difficult. If you would like further information about trademarks then please refer to the trademark section of our site.