Shoe designer Christian Louboutin’s continuing legal fight to protect his signature red soles from imitators is fascinating. Can you really own a colour? Can the designer really uphold such a simple- but oh-so-effective-USP? Christian Louboutin certainly hopes so. A spokesperson for his eponymous label confirms that the designer plans to appeal a New York judge’s decision last week to deny Louboutin’s bid to block Yves Saint Laurent from producing red-soled shoes in its 2011 Cruise collection.

The story so far: in 2008 Louboutin trademarked a lacquered red sole on footwear ( Pantone No. 18-1663 TP, or “Chinese Red,” FYI). In April this year Louboutin filed a trademark infringement lawsuit in New York saying that YSL had breached its copyright by using the red sole, in July the judge heard preliminary evidence – with YSL’s representative arguing that no brand should have a “monopoly on a colour”- and last week Judge Victor Marrero denied Louboutin’s atttempt to block YSL’s shoes.

Potentially worse for Christian Louboutin, who has another hearing in the case scheduled this Friday, the judge also implied that his 2008 trademark could be cancelled. (Read the whole ruling here.)

Not that Marrero doesn’t appear to have some sympathy for Louboutin’s cause. His 30-page ruling mixes legalese, art history and the politics of branding etc while suggesting he’s sensitive to the importance of the scarlet sole for Louboutin. Marrero invokes lyrics from Jennifer Lopez’s song Louboutins to underline the label’s prestige, and describes the shoes as “a product visually so eccentric and striking that it is easily perceived and remembered.”

What seems to trouble the judge are the potential ramifications of owning a colour in a certain context. It’s not unheard of: Tiffany has a patent on the very precise shade of pale blue used on its packaging (after all would a Tiffany ring have the same princess appeal without the little blue box?), but owning a whole colour category, or at least a range of similar shades, when applied to the sole of a shoe is a different proposition that Marrero thinks could cramp other designers’ creativity.

Should Louboutin lose his trademark, how damaging will it be to his business? If he was an up-and-coming designer then the answer would be very. But maybe he’s sufficiently established and respected to be known for more than just this one motif. Customers don’t only go to Louboutin for the red sole; his more loyal, less jump-on-the-bandwagon fans go for the fineness of his stilettos and his sleek, sophisticated brand of sex appeal. But what if every mass market shoemaker from Payless to Primark suddenly whacks a red sole onto their less-than-luxurious products? Will that cancel out its cache?

Could the trademark simply be made a little more precise? Is Louboutin right to see red?

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