Key Takeaways
- A color can be a trademark, but only when consumers have come to see it as identifying a particular brand, as with Tiffany's blue box.
- After Louboutin's litigation with Yves Saint Laurent, his red-sole mark protects a red outsole that contrasts with the rest of the shoe, not an all-red shoe.
- A color that serves a useful function cannot be a trademark, as a 2025 Federal Circuit decision cancelling a medical-device maker's pink color marks shows.
The robin's-egg blue of a Tiffany box. The red sole of a Christian Louboutin heel. Both are instantly recognizable, but can a company really own a color?
In this TalksOnLaw Brief, Barbara Kolsun, Professor of Practice and Director of the FAME Center for Fashion, Arts, Media & Entertainment Law at Cardozo School of Law, and a former general counsel to several fashion companies, explains when a color can be trademarked and why it is not easy.
Yes, but Not Easily
The answer is yes, Professor Kolsun says, although Christian Louboutin could tell you it is not simple after his long and expensive litigation with Yves Saint Laurent. The court in that case limited Louboutin's protection to contrasting colors. His red sole is protected, and he holds a registered trademark for it, but that protection comes with that limitation.
The Key: Source Identification
The central question is whether the color acts as a source identifier. You see a Tiffany box and think Tiffany. You see someone walking down the street in shoes with a red sole and think Christian Louboutin. That, she explains, is source identification, the heart of trademark law, just as the Nike swoosh says Nike and the polo player says Polo.
Not every color qualifies. Holding up a TalksOnLaw mug with an orange interior, she says that color probably could not be registered. It might become protectable only if TalksOnLaw became so famous that consumers saw the orange and thought of TalksOnLaw.
What Protection Means
Once a color earns protection, competitors cannot borrow it. Tiffany, she notes, still has protection for its signature blue, and a rival jeweler such as Cartier definitely could not start using that blue for its boxes.
What to Know Now
The framework Professor Kolsun describes remains the law. In Qualitex Co. v. Jacobson Products Co., the Supreme Court held that a color can be registered as a trademark when it has acquired secondary meaning and is not functional, and Wal-Mart Stores, Inc. v. Samara Brothers, Inc. reaffirmed that color alone requires that showing. The Second Circuit's 2012 decision in Christian Louboutin S.A. v. Yves Saint Laurent America Holding, Inc. still defines the red-sole mark as a red outsole contrasting with the upper. Functionality remains a significant limit: in 2025, the Federal Circuit affirmed the cancellation of CeramTec's pink color marks for ceramic hip implants because the color resulted from a patented, useful formula. Outside the United States, courts in the European Union and Brazil have also upheld protection for Louboutin's red sole in recent years. A distinctive color can be a powerful brand asset, but it takes time, consistent use, and evidence that consumers connect it to a single source.
