While nothing has changed about my love for shoes since my last post (although I have added a couple of pairs of great boots to weather the Ohio winter in style) there has been a new, and interesting development in the Yves Saint Laurent (YSL) and Christian Louboutin lawsuit. If you’ll recall the lawsuit is centered around Louboutin’s lawsuit in the Southern District of New York which claims that YSL infringed upon Louboutin’s trademark red-soled shoes. In August, the federal judge denied Louboutin’s injunction to stop YSL from selling red-soled shoes.
Now 11 law professors have come out in support of YSL. The professors, who research and write on trademark law and related topics, filed an amicus brief with the court and said that the arguments by Louboutin to protect a color in fashion, “should be rejected in order to preserve freedom of innovation and competition.” Interestingly, the law professors noted, “a woman who buys red shoes is doing so for a reason – red shoes have a particular meaning to her, and to others, that cannot be supplied or even approximated by shoes of a different color. Given the substantial creativity involved in both fashion design and fashion consumption, courts should not lightly allow one particular competitor to monopolize particular fashion submarkets.”
On the other side of the aisle, Tiffany & Co., who has a trademark for its signature blue packaging is, understandably, supporting Louboutin.
Meanwhile, presumably, YSL continues to sell its red soled shoes. Which from a damages perspective provides some good data to Louboutin in terms of determining the defendants profits. Assuming Louboutin is being damaged by these actions, interestingly enough, the passage of time does generally provide for better data from the defendant which the plaintiff can use to prove those damages.
What do you think? Should YSL be allowed to use the red-sole on their shoes? Do you think YSL’s red-soled shoes are damaging Louboutin?