In a preliminary ruling, a US District Judge has refused to grant trade mark protection for sole colour of shoes even if they have acquired consumer recognition and secondary meaning. In the case Christian Louboutin, a popular shoes company filed a case against Yves Saint Laurent for trade mark infringement of its red outsole trade mark. As per Christian, shoes made and sold by Yves having a red sole violate its trade mark in red colour sole for shoes, which are very popular and well recognized among the consumers. Christian pointed out that any colour confusingly similar to its Chinese Red would violate its trade marks in the red sole.
Despite the fact that Christian has been using the red sole for woman’s shoes since 1992 and has acquired wide consumer recognition, the judge carved out an exception for fashion industry. He pointed out that colour as such cannot be protected as a trade mark in the fashion industry unless it has a pattern to it. He pointed out that colours in fashion are used in designs primarily to advance expressive, ornamental and aesthetic purposes and therefore, cannot be trade mark protected.