Christian Louboutin holds on to his red soles

Can a color be trademarked in the fashion industry?

According to a federal appeals court, the answer is yes, though the legal protection may depend on how the color is used.

The New York-based 2nd Circuit Court of Appeals ruled Wednesday that Christian Louboutin may prevent other fashion houses from copying his distinct use of a red, lacquered outsole on a high-heel shoe of a different color, described by the court as “an identifying mark firmly associated with his brand.”

“We hold that the lacquered red outsole, as applied to a shoe with an ‘upper’ of a different color, has ‘come to identify and distinguish’ the Louboutin brand and is therefore a distinctive symbol that qualifies for trademark protection,” the court said, overturning a lower court’s decision.

The appeals panel nevertheless ruled that Louboutin has no protection if the color is used on both the outsole and the rest of the shoe.

The ruling stemmed from a dispute between Louboutin and Yves Saint Laurent. Louboutin charged that a YSL high heel that used the red outsole on red high heels violated the Louboutin patent. The appeals court directed the Patent and Trade Office to limit the registration of Louboutin’s “Red Sole Mark” patent only to shoes with red, contrasting outsoles.

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