The Red Shoe Diaries: Tech Companies, Fashion Wars, and Trademark Protection

August 28, 2011

11:00 am

Ladies, we may be unwitting victims of a red-shoe war. That’s because a dude judge recently told Christian Louboutin that he doesn’t think that those hot red-soled shoes are worthy of trademark protection. This lacquered red color alone may be protectable as a trademark if it has become distinctive in the high-fashion shoe industry for the Louboutin brand. But the judge wasn’t convinced that we’ve caught the Louboutin fever.

So red soles may be coming to a Payless near you soon, in pleather form. (Gasp!)

Men, stop pretending that you don’t understand what I am talking about. And even if you don’t care about his shoes, you do care about brand protection. Especially brand protection for fledgling start-ups who are trying to make money and mark their turf in the big, bad, tech world.

Really, tech and fashion don’t live on different islands. Fashionistas and their fellas have been drooling over Louboutin’s iconic red-soled shoes for years. Maybe you fell in love with them after seeing Sarah Jessica Parker rock the platform python sandals in the first Sex in the City movie. As Louboutin playfully notes in this video, every woman is a showgirl.

Assuming you don’t have an expensive shoe fetish, this lawsuit may still affect you. High-tech companies can become victims of color confusion too. Someone could knock off your tech startup logo’s cool look and color choices. That could drive people – potential customers –  to their website instead of yours.  Or they could make a product that looks an awful lot like what you’ve been selling, color and all. Pretty scary, no?

Color choices are important in many industries. If used well, they can even evoke positive emotional responses in the people you want to buy your products. The cool white of the Apple® icon reflects its computer users’ sense of calm dependence on its stable and easy-to-use products. Louboutin’s red soles evoke a fire-hot sexiness, which is often felt by the wearers and their admirers.

So what do you think?  Would you pursue color protection for your brand?

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Antigone is a recovering BIGLAW lawyer who is now the founder and CEO of Cloudigy Law. She is an unabashed technophile who loves her day job because it’s about 50% technology and 50% law. Follow Antigone on Twitter @antigonepeyton.

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