![]() In these cases, color alone is not enough, but color used consistently over time, which consumers associate with a brand, may be subject to trademark protection. It held British consumers had come to associate the purple packaging of milk chocolate with the Cadbury brand since it came into use in 1914. In London, a court also ruled that color could be subject to trademark protection when the court upheld Cadbury's use of the color purple for its milk chocolate packaging. The law refers to such a mark as acquiring distinctiveness, or if not inherently distinctive (like the Nike swoosh), it is held distinctive if acquires secondary meaning in the mind of consumers. If a company invests significant resources into developing a mark that consumers come to recognize, it's only fair that the company should enjoy exclusive use of its own branding. The market study results were no accident-Louboutin invested millions of dollars marketing its red-soled shoes since they entered the market. Courts, secondary meaning is acquired when “in the minds of the public, the primary significance of a product feature is to identify the source of the product rather than the product itself.” Louboutin submitted market studies to the court, which concluded that consumers had come to recognize the red sole as identifying the Louboutin brand. Secondary Meaning-When a Color Acts Like a LogoĪccording to U.S. Though the case was considered a win for Louboutin, the court did not grant the injunction against YSL because its use of the red sole was in conjunction with a red upper shoe instead of a different color, was not a use of the Red Sole Mark. The Second Circuit reversed, holding that the color red, when used on the bottom of a shoe with a contrasting upper shoe color, had acquired “secondary meaning” in consumers' eyes. ![]() The District Court of New York refused to enjoin YSL, holding that color alone could never be protected as a trademark. In 2011, Louboutin filed a lawsuit against Yves Saint Laurent (YSL), seeking to enjoin the high fashion competitor from selling its monochrome red shoe, which also has a red sole. Apparently, he got the idea when he painted the bottom of a black shoe with red nail polish, and in 2008, Louboutin applied for trademark registration for the red shoe bottom (“Red Sole Mark”). Christian Louboutin has been using red-lacquered shoe bottoms on his high fashion pumps since 1992. ![]()
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