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Louboutin Challenges Ruling That Lets YSL Sell Red-Soled Shoes

Louboutin SA asked a U.S. appeals court to stop Yves Saint Laurent America from selling red-soled shoes that it claims violates its trademark.

Louboutin requested that the appeals panel overturn U.S. District Judge Victor Marrero’s decision in August rejecting the company’s bid to prevent Yves Saint Laurent from selling shoes Louboutin said were identical to its own. At a hearing following that ruling, Marrero said he would defer deciding whether to cancel Louboutin’s red-sole trademark until the appeals court ruled on the injunction.

“We don’t claim shades of red,” Harley Lewin, a lawyer for Louboutin, told the three appeals judges yesterday in Manhattan. “We don’t claim anything but the mark as registered.”

The judges said they will rule later.

“There are far-reaching principles in this case,” U.S. Circuit Judge Chester Straub said in court. “Color can be trademarked. Here the district judge said in this case it can’t be. What findings did he make? I can’t find it.”

Yves Saint Laurent, the company named for the designer who died in 2008, began selling shoes with red outsoles “long before Mr. Louboutin began using them,” David Bernstein, a lawyer for the company, told Marrero at a hearing in July. YSL is a unit of Paris-based PPR, which owns other luxury brands including Gucci.

Brand DNA

“Our concern is, as a fashion house making monochromatic shoes, we should be able to continue doing that,” Bernstein said in court yesterday. The monochromatic shoe is “the DNA of the brand,” he said.

Marrero said in his August opinion that “because in the fashion industry color serves ornamental and aesthetic functions vital to robust competition, the court finds that Louboutin is unlikely to be able to prove that its red outsole brand is entitled to trademark protection.”

Louboutin, a Paris-based fashion company, said in the lawsuit filed in April that Yves Saint Laurent’s red-sole footwear “threaten to mislead the public.”

Referring to a pair of red Yves Saint Laurent shoes that were on the defense table, U.S. Circuit Judge Jose Cabranes said to Louboutin’s lawyer, “The whole shoe is red.”

“That’s not what you see walking down the street,” Lewin replied.

“You’re trying to block red shoes altogether,” Cabranes said.

“Just the soles,” Lewin answered.

Nail Polish

Straub told Yves Saint Laurent’s lawyers the shoes were distracting and asked that they be removed from the table.

Christian Louboutin, the designer for whom the company is named, got the idea for the red soles when he painted red nail polish on the black soles of a pair of women’s shoes. Court papers state that Louboutin’s red soles were introduced in 1992 and have been on all of its luxury shoes since then. They have been popularized by actresses like Sarah Jessica Parker in the TV show “Sex and the City.”

Cabranes said the appeals court is unlikely to grant Louboutin a preliminary injunction. The judges could send the case back to district court to reconsider the findings, Straub said. The third appeals judge was Debra Ann Livingston.

On the website of high-fashion department store Barneys, Louboutin’s red-soled high-heeled shoes are priced from $595 to $4,645 a pair. In court papers, Louboutin said U.S. retail sales of shoes for 2011 were projected at $135 million.

The U.S. Patent and Trademark Office awarded Louboutin a trademark for the red sole in 2008, according to the lawsuit.

The case is Louboutin v. Yves Saint Laurent America, 11-3303, U.S. Court of Appeals for the Second Circuit (Manhattan).

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