Can Tiffany trademark its blue color or Louboutin its red? What legal protections do brands have over their unique colors? Fashion law professor Barbara Kolsun explains the rules around trademarking a color and provides interesting industry examples, including the famous lawsuit between Christian Louboutin and Yves Saint Laurent.
Barbara Kolsun is an adjunct professor of fashion law at Cardozo law and the co-director at its FAME Center. She has served as the general counsel to a number of leading fashion houses.
That Tiffany blue box, the red sole on the Christian Louboutin shoe, can you trademark a color?
I’m Barbara Kolsun, director of the F.A.M.E. program and professor of fashion law at Cordozo Law School.
The answer is yes, although it may not be so easy as Mr. Louboutin could tell you after his long and expensive litigation with Yves Saint Laurent. The court in that case limited Mr. Louboutin’s protection to contrasting colors, so the red sole on his shoe is protected. He has a registered trademark for that mark, but that is the limitation. The key is whether the color acts as a source identifier. You look at a Tiffany box and you think Tiffany. You see a woman walking down the street with a red sole and you think Christian Louboutin.
So can any color be registered? Not so easy. For example, this TalksOnLaw mug, the orange interior, could this be registered as a trademark? Probably not, unless TalksOnLaw became very famous, and consumers looked at this mug and saw the orange and thought TalksOnLaw. That’s source identification. Just like we see the Nike swish and we say Nike, we see the Polo player symbol and we think Polo, we see the Tiffany blue box and we think Tiffany; that’s source identification, and that’s at the heart of trademark law. So, how does that affect Tiffany? Tiffany still has protection for the Tiffany blue, the eggshell blue. Could Cartier start using that color blue for its boxes? Definitely no.
I’m Barbara Kolsun. Thanks for watching TalksOnLaw.