Shoe designer, Christian Louboutin recently won their case in the federal appeals court that the signature contrasting red soles that appear on all of their shows are distinctive and unique enough to be protected under trademark law. This ruling sets an important precedent in color trademarks and creates very broad implications that will spread into other parts of the fashion industry. People have begun to question what winning this appeal will do in other areas of fashion, in particular website colors. Will colors on websites warrant trademark protection?
By definition, a trademark is a “is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify for consumers that the products or services on or with which the trademark appears originate from a unique source, designated for a specific market, and to distinguish its products or services from those of other entities.” When thinking about some of the most famous trademarks we might think about McDonald’s signature Golden Arches or Nike’s swoosh or even Apple’s apple. A 1995 ruling in the Qualitex case of the color of dry cleaning equipment, the courts held that the Lanham Act of the 1940s established that a trademark can be registered for a color because color can sometimes meet the requirements for a trademark in that it can distinguish a firm’s goods or services from another competitor.
Christian Louboutin began using red colored shoe bottoms in the 1990s. This has become a distinguishing feature for the brand over the years. Louboutin was granted a trademark for their red sole in 2008. In 2011, they learned that fellow designer, Yves Saint Laurent was also selling shoes with a red sole, they filed a trademark infringement claim. The New York federal district court denied their injunction, but Louboutin appealed. A September 5 ruling in the United States Court of Appeals held that Louboutin’s red outsole is distinctive and is qualified for protection when contrasted with a different color of the visible portion of the shoe.
How does this affect a company’s ability to trademark colors on their sites? One identifying color/feature that comes to mind is the red stripe at the top of CNN’s site. If someone saw the site from across the room, they would likely be able to still recognize the news site without actually reading the print. The red horizontal stripe helps with brand identification. The real question is whether or not it establishes trademark. The answer comes from if the stripe’s color and position are unique and whether using the same stripe on a competitor’s site would cause confusion for site visitors.
Former Commissioner for Trademarks, Lynne Beresford thinks that color use on websites may be warranted for trademark protection in some circumstances. She does however note that there has yet to be any color-only trademark applications. The blurred line between trademark law and copyright law is much more vague than any other intellectual property rights. These rights often overlap in new and complex ways. A company’s website design is copyrighted. Their layout, color and font choices and navigation is copyrighted. Their name and logo on that site are trademarked. Their site’s use of color may also be included in that trademark protection will likely come up in the courts in the near future.