A purely hypothetical puzzle, but I’m wondering, would Christian Louboutin have a viable trademark claim if Yves Saint Laurent sold women’s shoes in boxes bearing the above seemingly random grid of letters, each letter having equal type, style, font, color and emphasis?

For those of you who answered with a strong “of course not,” I suspect your answer must change if selected highlighting is added in a way that emphasizes the LOUBOUTIN mark, makes it clearly legible, and causes it to visually “pop” from the letter grid, as shown below:

Here is the point. In Christian Louboutin’s current trademark infringement lawsuit against Yves Saint Laurent (asserting Louboutin’s lacquered red sole trademark for women’s high fashion designer footwear), it is important to appreciate that the allegedly infringing women’s shoes at issue are monochrome red in color, meaning the entire shoe is red, each and every portion, not just the sole (which is the extent of Louboutin’s registered non-traditional single color trademark), making it very difficult to argue that the allegedly infringing Yves Saint Laurent red sole does anything other than blend into the background of their entirely red-colored shoes.

In fact, I’m left wondering whether an average consumer would even discern Louboutin’s red sole mark in Yves Saint Laurent’s monochrome red high heel shoes, anymore than they would notice the LOUBOUTIN mark in the colorless letter grid at the top of this post, or whether they would more likely and simply see a harmless sea of letters and a harmless sea of red throughout the entire shoe.

Stay tuned for some more of my thoughts on Louboutin’s lacquered red sole trademark infringement claim against Yves Saint Laurent.

In the meantime, below the jump you’ll find a depiction of the same letter grid with more highlighted words that are relevant to the current trademark battle between Louboutin and Yves Saint Laurent.

First, how are they relevant? And, what other words can you find beyond those highlighted ones?

For other DuetsBlog coverage — by a few of our more fashion-minded authors (Tiffany and Catlan) — of the Louboutin trademark battle involving the lacquered red sole trademark, see here, here, here, here, and here.

  • Mariecg2001

    Sorry, I don’t agree with you… I have noticed the Louboutin’s red soles in many TV shows lately, the shoes sometimes actually being identified as Louboutins by characters. Their presence in hit shows has put the mark not only in the minds of those who can afford the product but in the minds of hundreds of thousands of people who can only dream about being able to buy designer shoes.

    Now, let’s go back to the Yves St-Laurent red shoes… If I had seen someone wearing them, the sole would not have been lost among the rest as in your puzzle, quite the contrary, I would have thought that it was not such a good idea for Louboutin to make red shoes… I would have been confused as the source of the shoes… which is, last time I checked, an important criteria to determine whether or not there is infringement of the mark…

    • stevebaird

      Paul, I’m with you that red soles are source identifying and that Louboutin’s rights don’t or shouldn’t prevent another from selling a monochrome red shoe.

      Mariecg2001, do you agree that if Louboutin had submitted a specimen showing an all red monochrome shoe as a specimen of use, claiming in the drawing a single-color applied to the sole of the shoe, he would have been denied and told he isn’t using the claimed mark? I have no doubt about the answer to that question and it really highlights to me one of the inherent or implied limitations on a single-color mark that appears on only a portion of an article: There must be contrast between the claimed portion of the article and what isn’t claimed, otherwise it doesn’t stand out as a mark, it’s just a red shoe.

      I have great concerns about obtaining a narrow color mark that is on its face limited to a specific placement of that color on an article and then using it to stop the use of color on the entire article. Could Duracell enjoin a 100% copper-colored battery based on rights in its copper TOP color trademark? I don’t think so. I think it triggers a fair use issue when the enforcement target is an article with a single color applied on all surfaces, unless, of course, the registered trademark was approved as a single color mark covering the entire surface of the article in the first place, as was the case with the Owens Corning pink colored fibrous glass insulation.

      More thoughts to come on this subject, it is certainly an interesting topic. Thanks for sharing your thoughts. Steve

  • paul mussell

    Red soles are source identifying, red shoes (with or without red soles) are not, at least not that we know of. YSL should prevail.