In 2012, a federal appeals court held that shoe designer Christian Louboutin was entitled to trademark protection for his red-soled shoes, except when the alleged infringing shoe is entirely red. That ruling apparently did not hold much influence in Europe, as Louboutin filed suit in 2013 against Dutch brand Van Haren for selling black and blue shoes with red soles.
After a few rounds in lower courts, the Court of Justice of the European Union will now determine whether Louboutin’s red sole trademark is enforceable.
While the Louboutin case is pending in Europe, it serves as a good reminder that colors can merit trademark protection in the U.S.
Famous color marks registered with the U.S. Patent and Trademark Office include:
- UPS brown (Reg. No. 2901090): “The mark consists of the color chocolate brown, which is the approximate equivalent of Pantone Matching System 462C, as applied to the entire surface of vehicles and uniforms. The mark consists of the color brown.”
- Tiffany blue (Reg. No. 2359351): “The mark consists of a shade of blue often referred to as robin’s-egg blue which is used on boxes.”
- Owens Corning pink (Reg. No. 2380742): “The mark consists of the color pink as applied to the entirety of the goods.” (The goods are identified as “building insulation.”)
To secure trademark protection for a color, the mark’s owner must prove “secondary meaning,” in other words, that the color has become distinctive as applied to the owner’s goods or services in commerce. Establishing secondary meaning can be pretty tough.
Colors are not the only form of nontraditional trademarks; other registered marks include sounds and even scents.