Seeing Red: Can a Brand Trademark a Signature Color? - Knowledge Wharton
“Every time we think about trademarking, we start with the brand name and the logo. Those are the things that companies want to protect first,” Cesareo said. “But, especially in luxury, there are other things that consumers come to recognize as a symbol or a signature for the brand that need to be protected. For Christian Louboutin, the red sole is the signature of the shoe. It makes sense that he wants to protect it in every jurisdiction in the world. You need to understand that for a consumer, the red sole means something. It signals luxury, it signals quality, it’s a status symbol. It signals sexiness in general.”
Cesareo referenced the hit song “Bodak Yellow” by Cardi B., who raps about buying “red bottoms” as a benchmark of her own success.
Gerhardt, who is working on an article about color ownership, said color works so well in branding, yet few companies try to protect that commercial distinctiveness.
“Even though color is so expressive, 80% of the marks that have been registered in the last 25-year period are words; they’re text. Another 20% are designs,” she said. “If you try to make a pie chart of all the brands that claim color in terms of trying to register them as a trademark, it is .02% It is such a small sliver in my pie chart, you can barely see it.”
Copying a design is a form of piracy. In this case, Van Haren is trying to steal the status and appeal of the original, according to Cesareo. “Even though they weren’t knockoffs legally speaking, they were still pirating a design that Louboutin felt needed to be protected.”
Losing the case could be disastrous for Louboutin because it’s already one of the most counterfeited brands in the world, according to Cesareo. A few years ago, a shipment seized at the port in Los Angeles yielded more than 20,000 pairs of knock-off Louboutins, which would have been worth about $18 million if they were real.
“This could cause a real dilution of the brand,” she said. “Not just knock-offs of the brand itself, but the second that this becomes very widespread and everybody starts wearing red-soled shoes, they lose that scarcity, that status symbol. They’re going to lose their distinctive power. It doesn’t just mean that knock-off sales are going to go up, but sales of the original, authentic brand are going to go down.”
But Karol said the European court’s decision reflects a mindfulness of countervailing concerns. “You don’t want later designers to be worried about putting red on their shoes. We want red to be free for everybody to use. We want to keep that freedom and not chill these designers into worrying about how they are going to use it exactly.”