A Young Brand Wants to Register its Green Sole as a Trademark & is Using Louboutin's Drawing To Do it
Andrei Mincov's commentary on the original article
Dashed lines in the drawing refer to the parts of the design for which protection is not sought. They mean that regardless of the actual appearance of the shoe, the only thing Irvington tries to protect is the green color of the sole. The article raises two legitimate issues. Almost literal copying of the trademark design may be considered copyright infringement. The problem with that is that it's not clear who owns copyright in the Louboutin drawing. It could easily be a clerk in a law firm that filed that application. Also, there is an issue of damages. If anything, the copyright owner's loss does not lie in the shoes that Irvington sells. It's limited to the copying of the image in the trademark application. In other words, it could be a de-minimis infringement that causes no real loss. The second issue is whether Irvington has acquired sufficient recognition for its green-color soles. This is a legitimate concern. Unlike trademarking names and logos, you can't trademark colors simply because you like them and want to be known under a certain color. You have to show that your products and services can actually be distinguished from all other similar products and services because of that color. It was only a matter of time before someone wanted to copy Louboutin's strategy. I'm actually surprised it took this long.