When in Doubt, Wear Red: Understanding Trademark Law's Functionality Doctrine and Its Application to Single-Color Trademarks in the Fashion Industry

Fashionistas will soon be able to snatch up a pair of solid red monochromatic shoes after the Second Circuit partially invalidated the Christian Louboutin trademark for a red-lacquered sole. The Southern District of New York had ruled against Louboutin in an August 2011 decision that denied Louboutin’s claims of trademark infringement and threatened the future of Louboutin’s exclusive signature soles. If that decision had stood on appeal, Christian Louboutin would have needed to seek other ways to make up for lost revenue if demand decreased for his shoes—worn by celebrities like Angelina Jolie and Madonna and currently sold at high-end stores, like Neiman Marcus and Saks Fifth Avenue––because of new competition from lower-priced brands that would be permitted to paint the bottom of their heels red, thus causing consumer confusion in the marketplace at the point of sale. Luckily, for the sake of high fashion, the Second Circuit declared the trademark still valid (with modification) and allowed for a single color to serve as a “legally protected trademark in the fashion industry.” Following the recent decisions in Christian Louboutin S.A. v. Yves