Fordham Law


Ready to Wear: The Fight Over Red is Really Just about the Colour of Money

Susan Scafidi in The Independent, October 31, 2011

Media Source

"The colour red just got some support from the colour blue," read a story in Women's Wear Daily last Tuesday, which is WWD speak for the fact that jeweller Tiffany is backing shoemaker Christian Louboutin in an attempt to persuade the legal world that colour can be trademarked.

The Tiffany blue box that brightens up any glamorous Christmas tree is as recognisable as the scarlet Louboutin sole that has been the subject of some controversy.

To recap: in April, Louboutin sued Yves Saint Laurent in a New York federal court, claiming that the all-red pump violated its 2008 trademark. In August, however, Louboutin's request that the shoes be withdrawn was overturned by Judge Victor Marrero, who argued that Picasso didn't trademark his Blue Period. Tiffany, though, registered its trademark in 1998. "Tiffany is not taking sides," said the attorney, also, coincidentally, responsible for registering Louboutin's trademark. "We are only trying to assure that this area of the law is not disturbed by an overbroad decision."

YSL's lawyers responded: "We think Judge Marrero was right in denying Louboutin's request and fully expect the Court of Appeal to agree." Of course, this is all about big business, a fact that Picasso and, for that matter, Van Gogh, clearly overlooked when they painted Celestina, say, or Sunflowers respectively. But should any designer really have a monopoly on a particular colour? After all, the effects could reverberate across the industry to the point where Valentino might also have a claim on red, Chanel could trademark black and white, Armani would own beige and Prada would possess brown.

"Tiffany has reason to be concerned," Susan Scafidi, director of Fordham University's Fashion Law Institute told WWD, pointing out that the "broad nature" of Marrero's ruling threatened to "weaken colour trademarks across fashion". And it might not stop there. As well as Tiffany blue, there's Flash yellow, a very specific shade, and Coca-Cola red. It's a slippery slope and one that could result in Father Christmas dressed in orange. And Tango might have something to say about that.