昨天寫了個「好紅的 US Open 2011」，又讓我想到前一陣子的新聞：Christian Louboutin sues Yves Saint Laurent for red sole shoes.

是否聽過類似的事情？這個紅色的鞋底是這家（Christian Louboutin）的專利，別人不可以做成紅的，不然會被他們告！我只以微笑回應，自忖：紅色鞋底？有沒有搞錯！這真是太虛榮了。再說這也太扯了！紅色是這個叫克麗絲緹翁．陸柏坦的人發明的嗎？還是紅色的鞋底是他發明的呢？如果是的話，又是哪一種紅呢？

 

我想：紅色的鞋底作為其產品招牌，或是 signature, 其他同業基於尊重、自尊、品牌區別、…等原因不用罷了！如果簡單如顏色都能申請為專利，那乾脆申請圓形的輪子為專利不是更有利！再說如何定義這位陸柏坦專利的紅色呢？

電腦可以輕易做出上百種紅色，只是大部份肉眼不易便是罷了。所以要和 Louboutin 同用一種紅色，其實也很不容易。如果能成為專利，就應能科學的定義其紅色，也應該是前所未有的紅。不然僅是昔知技術 prior art， 或現有技術 state of the art，怎能成為有效專利？)

在這個世紀初筆記型電腦上不全是用 touch pad 作為輸入工具，還有的用pointing stick，也有人告訴我：IBM 這紅色的 pointing stick 是有專利的(IBM 把它叫做TrackPoint)，所有別人都不可以用紅的。── TrackPoint 這個名稱有專利是合理的，但是紅色的按紐(TrackPoint的按紐)有專利，實在無法令人信服。(Toshiba 也有同樣的裝置叫 AccuPoint 是綠色的。以前只用過這兩個牌子，其他廠牌的就不清楚了！)不過 sticking point 這種東西是新發明，把它和紅色的外觀包裹在一起成為 TrackPoint 這個專利商標的話，就合理了。

就陸柏坦的紅色鞋底竟然能成為專利商標實在是匪夷所思，三四十年前，我小時候的雨鞋大概就只有黃色和紅色的，大人穿的還有黑色的。至少就我所知的紅色鞋底就比陸柏坦開始使用紅底來的早很多！──任何顏色都不應該是任何品牌、藝術家、設計師的專利商標。

Louboutin v YSL

Lay off my red-soled shoes

Can a colour be a trademark?

Aug 20th 2011 | from the printedition

 

APPEARING on “So You Think You Can Dance”, an American TV show, Jennifer Lopezstarts her song “Louboutins” by lying sulkily in sheets of red silk on a bed ina giant sparkly shoe and making a phone call. “Hello, Santa,” she says, battingher eyelashes, “I would like a shiny new pair of Louboutin shoes. You know, theones with the high heels and red bottoms.”

In the 20 years since Christian Louboutin made his firstpair of ladies’ shoes with shiny red-lacquered soles, his vertiginously heeled,sexy, colourful and nearly unwearable creations have become an object of desirefor celebrities like Ms Lopez, Angelina Jolie and Madonna, who even lets herdaughter Lourdes wear a metal-studded number. Today the puckish Frenchman isthe biggest star in high-fashion shoe design, selling about 240,000 pairs ayear in America at prices ranging from $395 for espadrilles to as much as$6,000 for a “super-platform” pump covered in crystals. The revenue of hiscompany, Louboutin, is forecast at $135m this year.

Yet all this could be at risk, says Louboutin’s lawyer, if Yves Saint Laurent (YSL), another fashion firm, continues to gain the upper hand in a legal dispute between the two companies. On August 10th a district court in New York refused to grant a preliminary injunction stopping YSL from selling shoes with a red sole that Louboutin says infringe its trademark. The judge did not believe that a designer could trademark a colour. He asked both parties to appear again in court on August 19th to decide how to proceed withthe case.

“We don’t like it,” says Harley Lewin of McCarter & English, an American law firm which is representing Louboutin. The judge has over reached, according to Mr Lewin, by making this a case about the justification of Louboutin’s trademark rather than a ruling on a request for a temporary injunction prohibiting the sale of red-soled YSL shoes. He intends to appeal against the decision.

Louboutin sued YSL alleging that several of its rival’s shoes infringed Louboutin’s trademark on women’s shoes with a red outsole, which was granted to the company in 2008 by America’s Patent and Trademark Office. Louboutin identifies the shade it uses as “Chinese red”, but argues that any confusingly similar shade would infringe the trademark. YSL’s offending shoes are red all over.

In denying the request for an injunction the judge said that in the fashion industry colour serves ornamental and aesthetic functions vital to robust competition, so Louboutin was unlikely to be able to prove that its brand was entitled to trademark protection. He acknowledged that courts had recognised the use of colour in trademarks in the fashion industry before, but only in patterns with multiple designs such as the Louis Vuitton logo or Burberry check. Trademarks have been given to single colours for industrial products, such as yellow for Post-it notes.

Louboutin retorts that granting a trademark to one or several colours, such as Gucci’s stripes, is the same. Moreover, it maintains that Christian Louboutin was the first to use red outsoles. Not true, says its opponent, who claims that King Louis XIV had red-heeled dancing shoes in the18th century and Dorothy danced in ruby slippers in “The Wizard of the Oz”.

The judge has made up his mind that no fashion designer should be allowed a monopoly on colour because as artists they all need to be able to use the full palette. To make this point, he imagined Picasso taking Monet to court over the use of blue in his painting of water lilies, because it was the same or close to the distinctive shade of indigo, the “colour of melancholy” he used in his Blue Period. Moreover, unlike patent law, trademarks are never about granting monopolies, argues David Bernstein, a lawyer for YSL at Debevoise and Plimpton. Trademarks are merely the right to indicate the origin of a product or service.

Susan Scafidi of Fordham University School of Law in NewYork says that the judge sidestepped the important question by boiling theargument down to aesthetic functionality. The true challenge of the case, says Ms Scafidi, is to determine when the use of colour on a portion of apparel is a design element and when it is a trademark. It will now be the job of an appeal court to rule on the matter. And if Louboutin loses again, the company says itwill take its case all the way to the Supreme Court.

http://www.economist.com/node/21526357

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The above story was taken from the website of "The Economist", which is not involved with nor endorses the production of this blog.  The copyright remains with original owner, The Economists and/or other copyright owners.