You’re not likely to quicken the pulse of many fashionable women by mentioning Registration No. 902955, Pantone 18.1663TP, Class 25. But you’ll probably get much further by translating what this identification code—currently in the files of the World Intellectual Property Organization’s headquarters in Geneva—means to female shoppers around the world: a pair of Christian Louboutins.
More precisely, a pair of Louboutins with a red-lacquer sole. In fact, there is no other kind. The chic Parisian cobbler first slapped a little red paint on the bottoms of his pumps and platforms back in 1993. Since then, his irreverent designs have used everything from toundra fur to blue Austrian crystals. But it’s those shiny, inevitable red soles that have become a veritable trademark.
Make that a literal trademark. Louboutin’s attorneys secured the rights to the red-lacquer sole in 2008, both in the U.S. and in the 75 other countries that observe WIPO’s conventions. It’s just too bad the designer waited so long, because—as the selection on page 2 demonstrates—several other brands have been making red-soled shoes, too. Last month, Louboutin put his foot down, filing separate suits in Manhattan Federal Court against Yves Saint Laurent and Carmen Steffens for their forbidden use of la semelle rouge.
While neither Louboutin nor YSL responded to requests for comment, Mark Willingham, president of U.S. operations for Carmen Steffens, says red is theirs to use as much as green or purple or canary yellow. “Over the years, we’ve incorporated almost every color imaginable into our footwear soles—including various tones of red,” he says. “It’s part of our brand’s DNA.”
So we’ve obviously got a fight brewing here, and despite how petty it might look, the dispute actually reaches to the core of what it means to create a brand. Alan C. Drewsen, executive director of the International Trademark Association, points out that if Louboutin fails to protect his trademark now, imitators may eventually leave him with nothing to protect at all. “Aspirin and Cellophane were once trademarks that weren’t adequately defended,” he says. “Now they’re generic.” The other core component is color itself: How a certain hue, used in a certain way, can create an icon of fashion.
According to Michael Shaw, a patent attorney with the London intellectual-property firm of Marks & Clerk, it’s only been possible for a brand to trademark a color since 1996, and it’s never been easy. “It [must] be shown that the color has acquired a highly distinctive character as a result of substantial use,” he says. (Rare examples: Tiffany & Co.’s trademark of the robin’s egg blue gift box and Owens Corning’s mark for pink fiberglass insulation.) “Generally speaking, colors don’t function as trademarks,” adds New York Law School professor Dan Hunter. “But they can with enough use, enough marketing, and enough consumer recognition. Which is what happened with red-soled Louboutin shoes.”
But in Louboutin’s case, there’s an X factor that goes beyond what his lawyers will have to prove in court (which is that the competing red soles are likely to cause consumer confusion between the brands). Women don’t drop $1,000 on a pair of CLs because they happen to like red under their feet; they do it because they like what that red represents. “I talked to a very successful businesswoman about this the other day,” relates Milton Pedraza, CEO of the Luxury Institute. “And she said, ‘Of course that red sole matters. It signals to the world that I wear Louboutins—a top-of-the-line shoe. It [says] I’m a successful woman, and I bought these myself, that I’m powerful—and still feminine.”
Christian Louboutin probably didn’t set out to create a product with socio-sexual overtones as complex as that, but it’s part of what he’s defending in court right now. “That sole has a lot of messaging embedded in it,” Pedraza says. “It’s about the emancipation of women in the corporate suite.”
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