A recent Mall of America and Nordstrom shopping trip (with visiting extended family), coupled with some initial moments of admitted boredom, led me to wandering through the shoe department:

Let’s just say, the stroll through the shoe department made it all worthwhile, to capture the above image, showing Louboutin’s latest fashion sense, leading to my mental stroll down memory lane:

Louboutin Red: Blending Into the Background

Louboutin Red-Sole & Surrounding Contrast: An Implied Trademark Limitation

Louboutin: Still Waiting on the Second Circuit Court of Appeals

Louboutin Wins Second Circuit Appeal, Sort Of . . . .

Louboutin & Lessons Learned

That seven month span of blogging was pretty special (February 12, 2012 through September 17, 2012), actually making the case for narrowing Louboutin’s red sole color trademark registration.

In the end, the Second Circuit Court of Appeals ordered the amendment of the red sole color registration to compel the limitation we said was implied: Contrast with the remainder of the shoe.

This, of course, opened the door to requiring that Louboutin tolerate monochrome red shoes, as any red soles on a monochrome red shoe would not possess the necessary constrast to be seen.

Since then, Louboutin has been seeking global protection for his contrasting red-color trademark applied to shoe soles, with a recent win in the EU, however, he’s currently been snagged in India.

Given the striking shoe above, other Louboutin spiked shoes below, and knowing Louboutin’s comfort with non-traditional trademarks, filings at the USPTO seemed plausible, but no, none yet:

Afterall, the spikes appear purely ornamental with the potential for acquired distinctiveness, and no functionality, well, unless this footwear is designed for, shall we say, painful kicks in the pants.

At this point, the Louboutin brand appears synonymous with the red-sole of a woman’s shoe, which probably explains the non-verbal trademark below being applied to other fashion items:

 

 

So, we’ll keep a lookout for new non-traditional trademark filings by Louboutin, while you keep a lookout for any look-for advertising that might set the stage for claimed rights in a spiked mark.

We’ve written before on the subject of non-traditional trademarks and how look-for advertising can be quite helpful in not only educating consumers that a color or other design feature should stand out in their mind as performing the helpful role of a trademark, but in convincing the USPTO too.

Earlier this month the USPTO granted a fairly broad non-traditional federal trademark registration to Q.E.P. (owner of the NUPLA tool brand) to help protect the brand equity in the black stripe appearing on the handle of its tools, one example shown below:
NuplaHandleStripe

What is especially interesting about the issued trademark registration is that the claimed mark is not limited to a black stripe on a yellow handle (even though some of the evidence to support a showing of acquired distinctiveness focused on the black color of the stripe), but it reads to cover any contrasting colored stripe on any color of tool handle, as the drawing shown below and this description of the mark reveals:

NuplaDrawing

“The mark consists of a 3-dimensional configuration of a tool handle having longitudinally extending stripe of a color which contrasts with the principal color of the tool handle. In the drawing the dotted lines are illustrative of an exemplary of tool handle and are not part of the mark and serve only to show the position or placement of the mark on the tool handle.”

I’m thinking the Examining Attorney at the USPTO was persuaded as to the claimed showing of acquired distinctiveness, in large part, by the use of the reinforcing GET THE STRIPE tagline:

NuplaGettheStripeLogo

What do you think, does a brand owner need to use the clunky words “look-for” to gain the benefit of this kind of advertising, or would that be putting form over substance?

And, do you think the apparent protection of a contrasting stripe of any color is overbroad here?