Colour marks are a high-end purchase – like designer shoes!
This week, we’ve been mostly catching up on back episodes of Suits. It’s every bit as reliable an insight into the actualities of New York legal practice as it is an accurate biography of the Duchess of Sussex. But it’s fun, there are some great lines and everyone is fabulouslywell dressed! One recent episode showed managing partner Jessica Pearson striding purposefully away from the camera in a pair of killer heels, with the low camera angle clearly emphasising her bright red soles. ‘Posh shoes!’ commented Mrs Heeler. ‘Louboutins!’
Indeed they were, and that flash of red was all it took for Mrs H to identify them – an indicator of origin, ergo a trade mark. And this would have been music to the ears of Christian Louboutin’s trade mark attorneys because, for the last 25 years since he first applied Chinese Red to the undersides of his creations, he’s been fighting hard to assert his trade mark rights to this particular colour (something we can attest to from personal experience of some ‘robust’ enforcement proceedings against a client not so long ago!)
While it’s easy to refer to this USP as a ‘trade mark colour’, it’s a little harder to say exactly what the trade mark is. Traditional marks such as names and logos are easy enough to specify, but modern trade marks can also be ‘non-traditional’ – smells, sounds, shapes, movements, colours – and these are harder to pin down. Every business wants to be able to protect its distinguishing features, but distinguishing what those features are in the first place can be complicated. What exactly does Louboutin’s mark consist of? Is it a specific colour? Or is it the use of that colour on the sole of a shoe? How about any other shade of red? Or any other colour?
Does the sole have to contrast with the rest of the shoe? Or is an entirely red shoe also included? How about another contrasting colour scheme? Does it have to be a certain style of shoe? Do shape and size matter? The trouble is, recognising a mark is often easier than defining it. Mrs Heeler knew those red soles right away when she spotted them stalking the hallowed corridors of Pearson Specter (the soles that is, not Mrs H, and, yes, we’re only up to season 4). But that’s not sufficient for many trade mark registries or Louboutin’s competitors.
In his standard registration wording, M Louboutin specifies that his registered trade mark consists of ‘the colour red (Pantone No. 18.1663TP) applied to the sole of a shoe as shown’ and then only in respect of high-heeled shoes. But even this restricted formulation has attracted challenges from designers and trade mark offices around the world who don’t like the idea of any one enterprise monopolising a single colour. Going after non-traditional trade mark rights like this takes tenacity and money, something Louboutin seems to have in equal measure. Colour marks in particular are a bit of a luxury item – expensive and aspirational, a bit like a pair of 4’ Pigalle Follies Veau Velours.