Can Christian Louboutin patent red soles?

[alphax]

EU Court of Justice says no.  US Federal Appeals Court said yes.

https://www.nytimes.com/2018/02/06/business/christian-louboutin-shoes-red-trademark.html

 

[Shyheels]

It seems a stretch to allow anyone to trademark a colour. Perhaps Monsieur Louboutin will have to focus his effort more on quality and uniqueness of design rather than just the colour of his soles to set his shoes apart from the herd. Hire more designers, fewer lawyers and get back to the workbench.  

[Steve63130]

Back in the 1970s and early 80s I worked for a fiberglass company who made insulation for buildings. They successfully trademarked "pink" color and surprised the world. So there is precedence for trademarking color.

Steve

Edited February 16, 2018 by Steve63130

[Shyheels]

Yes, and Cadbury has trademarked the particular shade of purple they use as packaging - but I believe the trademark extends only to the use of that particular shade in association with chocolate products. There were limits. Claiming an entire range of the spectrum - which frankly, depending on the eye the beholder could stretch from orange-red to purple-red - as exclusively 'yours' when it comes to shoe soles is rather sweeping.     

[alphax]

I think CL has a good case for patenting that shade of red on their soles. 

I had never heard of such a thing before they started doing it. 

Unless someone can show "prior art" i.e. somebody else put red soles on high heeled shoes, then they should be allowed to say that this is their trademark. 

[Shyheels]

Louis XIV had red soles on his high heels....he mandated red as the colour in fact.

[alphax]

According to the articles I've googled up, Louis XIV made red heels a privilege for the monarchy and their friends.  Heels only, it's unclear what color their soles were.

http://www.thefashionhistorian.com/2010/11/red-heels.html

https://www.forbes.com/pictures/emjl45ghf/louis-xiv-of-france-posing-in-red-heeled-shoes/#6c091a097a02

But traditionally in fashion, features can't really be patented. A new design trend like peplum skirts or shoulder pads can be copied by anyone else.

It's more like you can patent a logo like Nike's swoosh, or Louis Vuitton, or Tommy Hilfiger's logos.

Allowing patents on color or color scheme would be like saying Body Glove could patent day glo green or yellow and black swimwear.

[Shyheels]

Damn! And here I was all set to patent the two-sleeve shirt and the five-finger glove and make a fortune licensing out my patent.  Well, there goes another money-making winner out the window. This is all so unfair...

 

[MackyHeels]

 Found the different Louboutin pointy toe styles to be a bit confusing to differentiate in the beginning, so I thought maybe this would help.  I have done a little comparison between the Pigalle, Pigalle Follies, and So Kate, and I'll let you know which one my favourite is.

 

 

 

 

 

• The Pigalle is the "original" Louboutin style with a chunkier heel and shorter toe box and comes in 100 and 120mm.  
• Then the So Kate came out which has a more slender heel that tapers a little, and a slightly longer toe box.  It only comes in 120mm.  
• The Pigalle Follies is like a hybrid between the Pigalle and the So Kate style.  It has the front smaller toe box of the Pigalles, and the back slender heels of the So Kate.  It comes in both 100 and 120 as well.

I think it's very hard to differentiate between the So Kate and Pigalle Follies 120.  Next to each other, I'd be able to tell the difference by looking at the toe box.  But if I were just to look at one pair alone, I'm not sure I'd be able to tell which one it is!

 

So, I haven't tried on the Pigalle or Pigalle Follies 120, but the So Kate 120 is not that comfortable lol.  I can't imagine that the Pigalle or Pigalle Follies 120 would be much better.  I think there's just a huge difference between 100 and 120 even though 20mm sounds like such a small amount.  

 

Pigalle 100 and Pigalle Follies 100 fit very similar, so it's a matter of aesthetic which one you prefer.  I like both of them, to be honest.  I feel like the Pigalles are sturdier, but I love the ultra skinny heel of the Pigalle Follies.  I

Edited May 20, 2018 by MackyHeels

[at9]

There's some confusion in this thread between patents and trademarks. Intellectual property is a complex field with much scope for interpretation. Here's a reasonable introdcution: https://yourstory.com/2016/06/difference-trademark-copyright-patent/

A red sole cannot be patented. It might be possible to make it a trademark but courts have disagreed.

[CrushedVamp]

As a creative person myself who makes income using intellectual property I understand the need to protect that, but to me this seems more of an arrogancy thing then true creative genius. I mean do they think they were the only designers ever to put red soles on shoes? It would be like me coming up with a cool title of a novel and then trying to copyright the title, and suing anyone else who tries to use it. Is it a creative title? Sure, but it does not mean someone else has not came up with the idea before me.  You can't copyright titles for that very reason and CL should not be able to Trademark a primary color like red on the sole of a shoe. What is next, them claiming they should get Trademark rights to black pumps?

The litmus test should be probability. It is highly likely some Cartwright made shoes with contrasting colors at some point, like red soled shoes. Now if CL had made a Red and green chevron pattern or their soles or something, that might be different, it is less likely someone else came up with that design, but the use of a primary color just seems like arrogancy to me. Like some grade school kids arguing on the playground they did something first when there is no proof of it.

[Puffer]

The short answer is that CL has successfully obtained trademark recognition for red shoe soles (of a specific shade - an important factor), and has taken (or defended) court action relating to alleged breaches.   See here for the history: https://studentorgs.kentlaw.iit.edu/ckjip/the-worldwide-trademark-battle-over-the-iconic-red-bottom-shoe/

[CrushedVamp]

On 1/2/2025 at 10:11 AM, Puffer said:

The short answer is that CL has successfully obtained trademark recognition for red shoe soles (of a specific shade - an important factor), and has taken (or defended) court action relating to alleged breaches.   See here for the history: https://studentorgs.kentlaw.iit.edu/ckjip/the-worldwide-trademark-battle-over-the-iconic-red-bottom-shoe/

The problem with that is, CL has both won and lost legal cases over the past few years that has diluted patent case law establishment. Even on cases that were won, the supreme courts of various countries have both sided with, and sided against, lower courts. There have even been cases where CL won, but no punitive damages were levied against the sued imposters. It is literally all over the board with court rulings.

CL certainly has claimed victory as it is better for their brand, reputation and stock prices albeit only 25% of the company being publicly traded, and I understand why they add "spin" to their wins, but its not been clearly established internationally.

I understand today every company adds a bit more of this color or that to create a new patented color, but it does not pass the simple test. That is, ask one hundred kids what color the bottom of the shoe is, and they are not going to say it's a variation of red, but 100% will say its red. I just don't see that simple color as being a viable argument to their shoes being that unique. 

[mlroseplant]

At this late date, Christian Louboutin shoes have now become famous enough to not need to worry about enforcement of court orders. Which expensive brand is going to copy it now, without seeming like they're doing exactly that. Would Steve Madden suddenly start soling their pumps with red, just because they could? I can see why the cases were brought years ago, but now, I don't really think it's an issue. For the record, I've never actually seen a pair of CLs in person. I shall have to ask my cobbler if anybody has ever brought some in.

[Puffer]

We need to be more careful with references to terminology and law, CrushedVamp.   We are dealing here with a trademark, not a patent.   And the varying attitude of courts in different jurisdictions is hardly surprising, even if it does lead to some inconsistency.   Moreover, in the UK there is (mercifully) scant recognition of the concept of punitive or exemplary damages - which seemingly are an everyday award in the litigious realm of the US!

All that apart, I tend to agree with you and mlroseplant that CL does not merit or need the 'protection' of a trade-marked red sole.   

[Shyheels]

I know Cadbury has won court battles over its particular shade of purple-blue for bars of chocolate. The rulings concerned that particular shade and for the sales of chocolate specifically. It’s complicated 

[CrushedVamp]

On 1/5/2025 at 2:31 PM, Puffer said:

We need to be more careful with references to terminology and law, CrushedVamp.   We are dealing here with a trademark, not a patent.   And the varying attitude of courts in different jurisdictions is hardly surprising, even if it does lead to some inconsistency.   Moreover, in the UK there is (mercifully) scant recognition of the concept of punitive or exemplary damages - which seemingly are an everyday award in the litigious realm of the US!

All that apart, I tend to agree with you and mlroseplant that CL does not merit or need the 'protection' of a trade-marked red sole.   

You are right, we are specifically talking about Trademark, my bad...

But law is a different matter. My FIL, MIL, BIL and SIL are all attorneys so when we sit down to Christmas dinner our discussions tend to be around the latest rulings of the Supreme Court and the implications that it might have on various aspects of our life. My FIL was even able to bring oral arguments to the Supreme Court something only a VERY few attorneys have ever done considering they only have 100 cases heard per year on average. He has a huge certificate of his achievement hanging in his house commemorating the event, one he won by the way, further cementing case law.

It was rather surprising though that United States sided with CL on this issue however while the European Courts tended not too.

But the reason the USA does place a much bigger priority on punitive damages in the court system is because how we were founded. We have a lot of liberties granted to us, but to protect those freedoms from abuses we were given the opportunity to sue the government and those who break the law. Its how we affect change because in the societal world value is most often associated with a monetary amount. So, if the police enter my house without a warrant, and I simply win my case against them and no monetary amount is charged, nothing changes because there were no meaningful consequences.  That is not quite the same when the police department has to pay $100,000 to me. And its an even stronger consequence in the business world because money is EVERYTHING to a corporation. On the surface it does seem like American greed at play by the US court System, but that is not the real situation. Its affecting real change by doling out dire consequences, and it's had a ripple effect on the world markets because we do. There have been some abuses of that system, and the most dire examples become the best known, but as a whole, punitive damages have had a profound effect on business ethics.

[Puffer]

As you raise a defence of punitive damage awards in the US, I feel obliged to respond - primarily from a commonsense viewpoint rather than that of a UK citizen.   

To take your example, it is clear that no meaningful damage has flowed from the police entry without a warrant.   Nominal damages for trespass, minor inconvenience or hurt feelings might be reasonable, but 'benefitting' to the tune of $100,000 (or whatever) is absurd, and would be regarded as unjust enrichment in the UK.   Moreover, the suggested deterrent effect on the police (or the government) must be balanced against the cost to the taxpayer.   I have little doubt that US citizens often welcome (or indeed engineer) situations where they may, and often do, end up financially enriched at the cost of minor inconvenience.   I can see that, in the context of wrongdoing by a business, the potential award of punitive damages has a useful deterrent effect, but the size and frequency of such awards tends imho to devalue their purpose.

In the UK, damages are primarily awarded as and limited to compensation for measurable loss.   Awards of punitive or exemplary damages are very rare and almost always confined to those situations where the person at fault has derived a benefit out of all proportion to the measurable harm done to the victim.   The most obvious example is in defamation (primarily libel) where a publisher makes large profits from its wrongdoing, far more than the measurable harm done to the person defamed.   In such a situation, it is right that the profits are effectively confiscated and given to the victim; otherwise, defamation would be a very common and profitable exercise.   Another, less common, reason to award punitive damages would arise from a truly serious breach of office by a public servant.

[CrushedVamp]

And this is where we differ; in the United States we hold our freedoms to be very dear.

I understand that a lot of times criminals are let go because of a technicality resulting from the Fruit of the Poisonous Tree, but that is just how the system works. The police MUST abide by the rules set forth in the constitution. Those rights are not malleable.

Freedom is scary.

Freedom is very scary.

Yet freedom is essential.

When you let some minor things go, like a police officer charging into a house without a warrant, we as a society cannot let that happen. The loss of freedom as a citizen is MUCH worse to us then the teenager who had his music up to loud and the police officer wanting to arrest him. They just cannot do that, and if they do, then the city that hired that police officer collectively has to pay for that mistake. $5000 is not going to make them think twice, but $100,000 grand will. Does the taxpayers pay? Of course they do, but through our ability to vote, we can change future hiring practices that led to such a cost. We have a system that holds elected officials accountable. It starts with the constitution allowing citizens to sue the government for egregious infractions.

The problem we have here is that the police (no matter the agency represented) thinks they are law enforcers, and they are not. They are law interpreters. The law enforcers consist of the District Attorney, and a Defense Lawyer or Defense Attorney, and the District Attorney is an elected position to ensure accountability to the citizens. In most cases, it will never go past this point as it is plea-dealed out. If it does go to a jury trial, the Judge is not even a Law Enforcer. That is up to the jury. All the judge does is ensure a trial proceeds according to court rules. He does not even give a sentence, that too is dictated by the jury, the judge just makes sure it is a sentence that is fair and within guidelines. That only changes if it is a bench trial and the defendant gives up his right to a jury and lets a judge decide.

But here is the interesting part, the excessive lawsuit payouts have only ONE guilty party: the citizens of the USA since a Jury decides what the payout is going to be and a jury consists of friends and neighbors. That is VERY rare though. Most of the time the lawsuit payout amount is decided by plea deals so the one paying ultimately decides how much they are going to pay.

It is all very simple when you skim off the dross.

 

[Puffer]

I will let your commentary on the US legal system speak for itself.  I am just glad not to be subject to it.

[mlroseplant]

I think you have to have punitive damages in order to discourage extreme bad behavior. If we stuck to mere compensatory damages, then certainly some, and perhaps many, corporations would simply see the lawsuits as part of the cost of doing business. We would really like them to sell us safe products in the first place. In some cases, the damages have to be really, really up there to have a punitive effect. This comes of letting corporations merge and merge and merge, and pretty soon you've got to have a $200 billion judgment to make them take notice at all.

The real question is, should all of those punitive damages go to the victims and their lawyers? If not, where should the money go?

[Shyheels]

Remember the Ford Pinto and the revelation that the company was aware there was a risk of explosions if the vehicle was rear-ended and had even calculated how many deaths were likely to occur as a result, and then made the conscious decision to regard any resulting lawsuits as a business expense. 

[Puffer]

22 hours ago, mlroseplant said:

I think you have to have punitive damages in order to discourage extreme bad behavior. If we stuck to mere compensatory damages, then certainly some, and perhaps many, corporations would simply see the lawsuits as part of the cost of doing business. We would really like them to sell us safe products in the first place. In some cases, the damages have to be really, really up there to have a punitive effect. This comes of letting corporations merge and merge and merge, and pretty soon you've got to have a $200 billion judgment to make them take notice at all.

The real question is, should all of those punitive damages go to the victims and their lawyers? If not, where should the money go?

 

22 hours ago, Shyheels said:

Remember the Ford Pinto and the revelation that the company was aware there was a risk of explosions if the vehicle was rear-ended and had even calculated how many deaths were likely to occur as a result, and then made the conscious decision to regard any resulting lawsuits as a business expense. 

Despite what I have said earlier, I agree in principle with the concept of punitive damages being awarded in the circumstances you suggest, essentially where big business has profited hugely from its deliberate and damaging act.   Such act being tortious rather than criminal and therefore normally meriting a civil remedy (typically monetary damages equal to a measurable loss) rather than a fine or imprisonment.   As I stated before, defamation by a (newspaper) publisher provides the main UK example of such a civil wrong giving rise to punitive damages intended to wipe-out the profit made.   There are other situations in the UK where punitive damages might be awarded (and occasionally have been) but the Courts here are reluctant to open the door too widely.   (Although the context and jurisdiction is not the same, we remain mindful of the well-known statement by Cardozo, C. J that the law should not admit 'to a liability in an indeterminate amount for an indeterminate time to an indeterminate class.' [Ultramares Corporation v. Touche, 174 N.E. 441 (1932)]) 

I also agree that the destiny of punitive damages poses a conundrum as they could easily enrich the successful claimant well beyond any reasonably measurable loss or damage suffered, but the deterrent aspect needs to be maintained.   Maybe, in many cases, excess damages should be treated like a fine and go to the government - or perhaps to benefit some good cause that is relevant to the mischief done.

All that said, I remain glad that I am not subject to the extremes of US litigation, where it seems any tortious act (however trivial) is likely to give rise to proceedings brought by one's aggrieved neighbour.   The 'compensation culture' in the UK is bad enough as it is.

[Shyheels]

Yes hefty punitive damages might overly enrich a plaintiff but what would giving the money to the government achieve? Or so called worthy causes relevant to the mischief caused by the defendant? . Who decides which cause and what is worthy? Is the government going to spend the money more wisely than the plaintiff?

I agree that the lawsuit culture in the US and the compensation culture in the UK are both disgraceful, and wildly overused to say the least, but giving these jackpot sums to governments and institutions on the grounds that they will have loftier sensibilities than Joe Lunchbucket who brought the suit seems awfully paternalistic and elitist.

The lawyers will naturally still receive their hefty slice

Thr whole culture needs to change 

 

[mlroseplant]

30 minutes ago, Puffer said:

 

Despite what I have said earlier, I agree in principle with the concept of punitive damages being awarded in the circumstances you suggest, essentially where big business has profited hugely from its deliberate and damaging act.   Such act being tortious rather than criminal and therefore normally meriting a civil remedy (typically monetary damages equal to a measurable loss) rather than a fine or imprisonment.   As I stated before, defamation by a (newspaper) publisher provides the main UK example of such a civil wrong giving rise to punitive damages intended to wipe-out the profit made.   There are other situations in the UK where punitive damages might be awarded (and occasionally have been) but the Courts here are reluctant to open the door too widely.   (Although the context and jurisdiction is not the same, we remain mindful of the well-known statement by Cardozo, C. J that the law should not admit 'to a liability in an indeterminate amount for an indeterminate time to an indeterminate class.' [Ultramares Corporation v. Touche, 174 N.E. 441 (1932)]) 

I also agree that the destiny of punitive damages poses a conundrum as they could easily enrich the successful claimant well beyond any reasonably measurable loss or damage suffered, but the deterrent aspect needs to be maintained.   Maybe, in many cases, excess damages should be treated like a fine and go to the government - or perhaps to benefit some good cause that is relevant to the mischief done.

All that said, I remain glad that I am not subject to the extremes of US litigation, where it seems any tortious act (however trivial) is likely to give rise to proceedings brought by one's aggrieved neighbour.   The 'compensation culture' in the UK is bad enough as it is.

I have two or three thoughts here. Number One, how and why are you quoting Justice Cardozo? I mean, he's kind of a figure revered in American law schools, but he's really a nobody in the grand scheme of things. Number Two, and if you've studied American law enough to be familiar with Benjamin Cardozo, I'm sure you realize that unlike in the U.K., suing for defamation in the U.S. is usually an exercise in futility, and only likely to make whatever damages suffered even worse than they were in the first place, and then you are likely to lose in the end. Number Three, we are not as sue-happy as is popular to report. In everyday life, it hardly ever happens. Here in the U.S., the U.K. has a worse reputation as a Nanny State. I am not sure either reputation is completely deserved.

[Puffer]

22 hours ago, Shyheels said:

Yes hefty punitive damages might overly enrich a plaintiff but what would giving the money to the government achieve? Or so called worthy causes relevant to the mischief caused by the defendant? . Who decides which cause and what is worthy? Is the government going to spend the money more wisely than the plaintiff?

I agree that the lawsuit culture in the US and the compensation culture in the UK are both disgraceful, and wildly overused to say the least, but giving these jackpot sums to governments and institutions on the grounds that they will have loftier sensibilities than Joe Lunchbucket who brought the suit seems awfully paternalistic and elitist.

The lawyers will naturally still receive their hefty slice

Thr whole culture needs to change 

If much or all of a punitive damages award is withhheld from the successful claimant (although I prefer the old term 'plaintiff') and treated as a fine and kept by the government, it would be on all fours with a fine awarded in criminal proceedings.   As to alternative (charitable) destinations, much would depend upon the nature of the wrong and the damage caused.   An obvious example, if the victims of smoking brought a claim, would be to fund a cancer charity.   Likewise for damage caused by drugs or other toxic substances.   Just a suggestion; I agree that the mechanism would need very careful thought.   It does not follow that lawyers would (still) receive a significant percentage of a total award; they are not necessarily retained on that basis; e.g. 'no win, no fee' - and super fee if they do win.

22 hours ago, mlroseplant said:

I have two or three thoughts here. Number One, how and why are you quoting Justice Cardozo? I mean, he's kind of a figure revered in American law schools, but he's really a nobody in the grand scheme of things. Number Two, and if you've studied American law enough to be familiar with Benjamin Cardozo, I'm sure you realize that unlike in the U.K., suing for defamation in the U.S. is usually an exercise in futility, and only likely to make whatever damages suffered even worse than they were in the first place, and then you are likely to lose in the end. Number Three, we are not as sue-happy as is popular to report. In everyday life, it hardly ever happens. Here in the U.S., the U.K. has a worse reputation as a Nanny State. I am not sure either reputation is completely deserved.

The 'floodgates' argument advanced by Cardozo in Ultramares is well-known and respected as dicta in the UK.   Although that case related to the effects of negligence, not defamation, the concept of limiting liability is a valid one in relation to most tortious action.   I am not a student of US law and have no special understanding of US actions in defamation, although I am surprised at the outcome you suggest - which appears to be that the subject  would become more exposed to reputational harm by bringing an action, which anyway is unlikely to succeed.   As to the reputations of the US and the UK, I hear what you say and agree that both tend to be exaggerated.   But, regardless of the extent to which civil actions in the US actually get to trial, it seems very clear that there is a much greater willingness in the US to 'get a lawyer', if only for advice and a warning of probable failure.   I accept too that the UK has quite steadily evolved into what one might call a 'nanny state' - unfortunately driven (since 1973) by the worst excesses of EU legislation that we are now not easily able or willing to disapply.  

[mlroseplant]

3 hours ago, Puffer said:

The 'floodgates' argument advanced by Cardozo in Ultramares is well-known and respected as dicta in the UK.   Although that case related to the effects of negligence, not defamation, the concept of limiting liability is a valid one in relation to most tortious action.   I am not a student of US law and have no special understanding of US actions in defamation, although I am surprised at the outcome you suggest - which appears to be that the subject  would become more exposed to reputational harm by bringing an action, which anyway is unlikely to succeed.   As to the reputations of the US and the UK, I hear what you say and agree that both tend to be exaggerated.   But, regardless of the extent to which civil actions in the US actually get to trial, it seems very clear that there is a much greater willingness in the US to 'get a lawyer', if only for advice and a warning of probable failure.   I accept too that the UK has quite steadily evolved into what one might call a 'nanny state' - unfortunately driven (since 1973) by the worst excesses of EU legislation that we are now not easily able or willing to disapply.  

And yet, easily 10% of the homes and businesses here in my neighborhood have a sign that reads, "NO SOLICITORS." You're welcome. 😜

[Cali]

As a planitift in a suit, the amount of money I received (with was several hundred thousand) in no way compensates me for the pain I will live with for the rest of my life. Muiti-millions wouldn't be enough.