Queen Mary Journal of Intellectual Property

Aesthetic functionality: can a single colour on a fashion item act as a trademark?

Federica Grillo *

Keywords: US trade mark law, aesthetic functionality, distinctiveness, secondary meaning, colour marks


In April 2011, Christian Louboutin – famous for his signature and US trade marked red-lacquered soled high-end women's footwear – sued Yves Saint Laurent for trademark infringement.

In a much criticized decision the District Court denied the injunction, holding that Louboutin fashion house had not shown a likelihood of success on the merits of its claims. Particularly, the Court held that, in the fashion industry, single-colour marks are inherently ‘functional’ and that any such registered trademark would likely be held invalid, pursuant to the Lanham Act and to the Supreme Court decision in Qualitex.

The Court of Appeal has overturned in part the District Judge's earlier decision; it ruled indeed that no per se rule governs the protection of single-colour marks in the fashion industry. Louboutin's mark has therefore acquired secondary meaning – and consequently the requisite ‘distinctness’ to merit protection – with the limitation to uses in which the red outsole contrasts with the remainder of the shoe (known as the ‘upper’).

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