Protecting Single Color Trademarks in Fashion after Louboutin

42 Pages Posted: 3 Apr 2012 Last revised: 4 May 2012

Date Written: April 2, 2012

Abstract

The District Court opinion in Louboutin S.A. v. Yves Saint Laurent Am., Inc., 778 F. Supp. 2d 445 (S.D.N.Y. 2011), has called into question the protectability of single color trademarks in the fashion industry. The Court’s apparent ban on single color marks in fashion, based on finding such marks “per se aesthetically functional,” has the potential to erode trademark protection within fashion beyond just single color marks. Moreover, the Court’s flawed reasoning — based on theories of color depletion, shade confusion, and broad aesthetic functionality — has the ability to impinge on trademark protection within other industries.

This article argues against a per se ban on single color marks in the fashion industry and posits that such marks should be eligible for federal protection with their validity based upon more fact-specific examinations. Extending protection to such marks would comport well with the goals of trademark law and the expansion trajectory of the Lanham Act, and would alleviate the current shortage of intellectual property protections available to the fashion industry.

Keywords: Louboutin, trademark, fashion, Lanham Act, single color, color per se

Suggested Citation

Gorman, Danielle E., Protecting Single Color Trademarks in Fashion after Louboutin (April 2, 2012). Cardozo Arts & Entertainment Law Journal, Forthcoming, Cardozo Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=2033880

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