We all have our own view on fashion and so does Tom Ford. The designer was in New York and spoke at 92Y, where he stated that fashion is not so much an art as it is a functional item. I am sure the folks proposing intellectual property rights for the fashion industry do not see eye to eye on this comment. You see, functional items cannot be protected. Have a look at the Christian Louboutin v YSL case, and you will see how controversial this “functional fashion” concept is.
Christian Louboutin v YSL
Christian Louboutin (CL) owns US Trademark Registration No. 3,361,597, which is described in the registration certificate as “lacquered red sole on footwear”. In Mr Louboutin’s mind therefore, he owns the use of the colour red on the sole of shoes and has the power to stop other designers from using the colour on the soles of their shoes.
It was this belief that caused CL to sue Yves Saint Laurent America, Inc. (YSL) for infringement, alleging that YSL’s sale of four shoe designs that are entirely red, with a red sole, were likely to confuse consumers. Judge Victor Marrero on 10 August 2011 denied CL’s motion for preliminary injunction and found that CL’s registration of the colour was a mistake.
Two things were asserted by this judge:
1. Colour in the fashion industry cannot be trademarked.
2. Colour cannot serve as a trademark if it is functional.
In January this year, CL took his case to the US Court of Appeals, hoping that the judges will find in his favour. On Tuesday, 10 January 2012, Christian Louboutin filed a reply arguing that:
I. the district court erred in:
- misconstruing the red outsole mark, ignoring the statutory presumption of validity, and ignoring the burden of proof; and
- misapplying the tests for functionality and aesthetic functionality, and
II. Louboutin was entitled to a preliminary injunction because it had shown that:
- its red outsole mark acquired secondary meaning;
- its red outsole mark is strong ;
- its red outsole mark is neither functional under the traditional test nor aesthetically functional;
- there is a likelihood of confusion;
- the red outsole mark is famous; and
- Yves Saint Laurent is not likely to succeed on its fair use defense.
Similarly, proponents for intellectual property protection for fashion designs, such as Professor Susan Scafidi believe that CL’s red is not functional. Referring to this case, Prof. Scafidi said the following, which sums up her opinion on the issue:
There are broader issues raised by this case, and they’re that fashion designs really have no protection. The industry has been trying for 100 years but intellectual property law still stops right at fashion’s door.
It just goes to show how a definition can affect matters. I also wonder if Tom Ford would feel differently if his trademarks were copied, like the famous T on his glasses.
What’s your take fashionistas?
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