The Distinctiveness of a Fashion Monopoly

3 New York University Journal of Intellectual Property and Entertainment Law 143 (2013)

University of Hong Kong Faculty of Law Research Paper No. 2013/042

56 Pages Posted: 5 Dec 2013 Last revised: 19 Dec 2013

See all articles by Haochen Sun

Haochen Sun

The University of Hong Kong - Faculty of Law

Date Written: December 3, 2013

Abstract

By focusing on the recent fashion warfare over the red sole used on luxury shoes, this Article reconsiders the implications of trademark protection of single color marks for regulating the development of the fashion industry and the cultural evolution of human society. Courts and commentators have focused on the role of the aesthetic functionality doctrine in deciding whether Christian Louboutin’s red sole mark should be protected by trademark law. This Article takes a different approach. It calls for a social justice-based re-examination of whether the red sole mark is distinctive enough to warrant trademark protection.

Based on a close look at the distinctiveness of the red sole mark, the Article puts forward a social justice mandate that should be incorporated into trademark law. It contends that social justice should have the trumping power to deny trademark protection of marks even if they are adequately distinctive. It also shows how the new mandate resonates with the equality-oriented protection under the First and Fourteenth Amendments. The Article further addresses practical concerns for implementing the mandate and discusses its merit in solving the problems caused by the aesthetic functionality doctrine.

Keywords: Distinctiveness, Trademark, Social Justice, Fashion

Suggested Citation

Sun, Haochen, The Distinctiveness of a Fashion Monopoly (December 3, 2013). 3 New York University Journal of Intellectual Property and Entertainment Law 143 (2013), University of Hong Kong Faculty of Law Research Paper No. 2013/042, Available at SSRN: https://ssrn.com/abstract=2363309

Haochen Sun (Contact Author)

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

HOME PAGE: http://www0.hku.hk/law/faculty/staff/sun_haochen.html

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