A Red-Leather Year for Aesthetic Functionality

Charles E. Colman

Richardson School of Law, University of Hawai'i

August 15, 2011

4:2 LANDSLIDE (American Bar Association), November-December 2011

An August 2011 decision in the high-fanfare, high-heeled case of Christian Louboutin v. Yves Saint Laurent America cements mid-2010 to mid-2011 as a "red-leather year" for the aesthetic functionality doctrine. This doctrine, which withholds trademark protection from ornamental features over which a grant of exclusive rights would significantly hinder competition, has had -- in the à propos words of the Ninth Circuit -- a decidedly "checkered" history.

Like intellectual property protection in general, the doctrine's scope has periodically expanded and contracted since it was formally recognized by the Ninth Circuit in 1952. But after that same appellate court largely banished aesthetic functionality in a 2006 decision that appeared to mark the end of an era, several recent, broadly worded decisions (including the headline-grabbing ruling in Louboutin) indicate that the aesthetic functionality doctrine may now be in a period of rapid growth -- perhaps even in the Ninth Circuit. Trademark practitioners should stay abreast of the changes in this area of the law; anyone who remains under the impression that the doctrine has been rendered toothless might be in for a nasty bite.

UPDATE (Jan. 2014): For a proposal that the courts and USPTO rely more heavily on the doctrine of "genericism" as a potential solution to the problems associated with the "aesthetic functionality" doctrine, please visit the LAW OF FASHION website -- containing a presentation given at the NYU 2014 Tri-State IP Workshop and forming the basis for a full-length work-in-progress.

Number of Pages in PDF File: 6

Keywords: louboutin, ysl, yves saint laurent, trademark, aesthetic functionality, red sole

Open PDF in Browser Download This Paper

Date posted: July 31, 2012 ; Last revised: June 19, 2014

Suggested Citation

Colman, Charles E., A Red-Leather Year for Aesthetic Functionality (August 15, 2011). 4:2 LANDSLIDE (American Bar Association), November-December 2011. Available at SSRN: http://ssrn.com/abstract=2120571

Contact Information

Charles Edward Colman (Contact Author)
Richardson School of Law, University of Hawai'i ( email )
2515 Dole Street
Honolulu, HI 96822
United States
8089567966 (Phone)
HOME PAGE: http://www.uhm.hawaii.edu/news/article.php?aId=7761
Feedback to SSRN

Paper statistics
Abstract Views: 669
Downloads: 72
Download Rank: 203,711

© 2016 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollobot1 in 0.172 seconds