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US court protects French shoemaker's red soles

Associated Press Modified: September 5, 2012 at 3:01 pm •  Published: September 5, 2012

NEW YORK (AP) — The distinctive red soles of Christian Louboutin shoes are entitled to trademark protection, even if the company can't exactly call the color its own, a federal appeals court said Wednesday.

The 2nd U.S. Circuit Court of Appeals in Manhattan reversed a lower court judge who had ruled against the French maker of luxury shoes worn by stars such as Sarah Jessica Parker, Scarlett Johansson and Halle Berry.

The appeals court said Louboutin was entitled to protect its brand against red-soled shoes made by competitor Yves Saint Laurent S.A.S., which is also based in Paris, though it instructed the U.S. Patent and Trademark Office to limit registration of the trademark to situations in which the red lacquered outsole contrasts in color with the adjoining upper part of the shoe.

In 2008, the trademark office granted protection to Louboutin, which has applied glossy vivid red to the outsoles of women's shoes since 1992. The shoes sell for up to $1,000 a pair.

U.S. District Judge Victor Marrero went too far in August 2011 when he ruled that a single color can never serve as a trademark in the fashion industry, the appeals court said.

It said Louboutin's bright red outsole had acquired limited secondary meaning as a distinctive symbol that identifies the Louboutin brand, and it credited some of the judge's findings about Louboutin's successful efforts to market the distinctive look to support its conclusion. It noted that the U.S. Bureau of Customs and Border Protection had recently seized over 20,000 counterfeit Louboutin shoes illegally shipped to the United States.

Still, the appeals court said it was limiting the trademark "to uses in which the red outsole contrasts with the color of the rest of the shoe." It noted, for instance, that Yves Saint Laurent's use of a red outsole on monochromatic red shoes does not infringe on Louboutin's trademark.

"It is the contrast between the sole and the upper that causes the sole to 'pop,' and to distinguish its creator," the appeals court wrote.

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