Friday, May 27, 2011

Interesting Facts About Christian Louboutin

Reading Complaints filed in lawsuits can be very revealing, particularly in the area of fashion.  The Complaint lays out the facts of the case, and describes what goes on within the company straight from the horse's mouth.   I finally read the Complaint for the Christian Louboutin v Yves St Laurent trademark lawsuit, and some things caught my attention.  The lawsuit is over this mark:

(I linked to a different red sole mark in my previous post on this, oops.)  This mark was applied for in March 2007, published for opposition in July 2007 (allowing anyone else to complain about its issuance), and registered in January 2008.  The Complaint is against the red YSL Tribute, Tribtoo, Palais, and Woodstock shoes, which apparently are shoes that are all red -- outside, inside, and sole.  The shoes come in blue and purple also, of similar design -- i.e. all blue outside, inside, and sole. 

Throughout the Complaint, Christian Louboutin goes to great lengths to describe the exclusivity, distinctiveness, and fame (or "well known") of the mark.  Here are some paragraphs from the Complaint about the marketing of Louboutins that I found interesting (numbered as they are in the Complaint):

33.  Plaintiffs have made the conscious effort to keep Louboutin Footwear as a recognized luxury item and thus away from what is commonly known as mainstream marketing.  The manufacture, design, promotion, distribution, lending and sale of Louboutin Footwear are all done by Plaintiffs with this fundamental strategy in mind.

34.  Plaintiffs have strictly limited the locations (known in the industry as "doors") where genuine Louboutin Footwear may be purchased.  Louboutin Footwear is only sold in Plaintiffs' own free standing eponymous boutiques, high end department stores, a few very select small individual retailers, and on the Internet via Plaintiffs' website, and the e-commerce sites of Barneys New York, Neiman Marcus, Saks Fifth Avenue, Bergdorf Goodman, and Net-A-Porter.com (which is considered by many to be the Internet equivalent of Neiman Marcus or the like).  In particular, in the United States, consumers can purchase geniune Louboutin Footwear in only seven stand-alone Christian Louboutin boutiques located in major cities, at the high end department stores Barneys New York, Neiman Marcus, Bergdorf Goodman, Saks Fifth Avenue and Nordstrom, at a very small number of unique luxury boutiques and via the Internet sites stated above.

35.  To maintain demand, Plaintiffs often will not fill an entire order that a vendor would like to receive, preferring instead to keep product in short supply and sufering "sold out" status from time to time.  Consumers thus watch carefully for all deliveries and often are on waiting lists for a new product.

36.  Plaintiffs carefully screen all requests from editors of magazines, celebrity stylists, writers, photographers and others who make public use of Plaintiffs' footwear to assure that such use will enhance the reputation of the Christian Louboutin brand and the Red Sole Mark.  For example, for publications Plaintiffs screen the readership, photographers, content and advertisers to confirm that the Louboutin Footwear is in the right publication and that the products advertised therein are similar in style and luxury.

37.  Plaintiffs do not give away footwear in return for photography placements or celebrity use, nor do Plaintiffs purchase advertising space in return for use of their products in photograph spreads by the very same magazines or newspapers.  Virtually all products provided for editorial photography or for celebrity events are returned to Plaintiffs upon completion of the event.  This strategy is very different than those employed by competing brands.  If celebrities want their own Louboutin Footwear, they purchase them.  If a magazine wants to use Louboutin Footwear in an editorial, they must request and then return the footwear, if provided at all.  Such strategy has had great results, with both celebrity and editorial use of Louboutin Footwear growing each year through the date hereof.

38.  Although Plaintiffs give a small amount of money as co-operative marketing money to certain of their upscale department store retailers, Plaintiffs themselves do not buy advertising space.  Plaintiffs rely almost entirely on filling the numerous requests to loan footwear for product placements, women's magazine fashion editorials, and celebrity events as the strategy to publicizie and market Louboutin Footwear.  [......]

The Complaint also goes into great detail naming all the celebrities who wear them, movies they've appeared in, Jennifer Lopez's "Louboutins" song, accolades and awards, and social networking sites dedicated to Louboutins.  The claims against YSL are trademark infringement, trademark dilution, false designation of origin and unfair competition (federal and state claims). 

YSL's Answer basically states the following (1) red soles have been in use since the 1600s; (2) YSL has used red soles since the 1970s, and the shoes accused have been sold for years.  They list a huge amount of shoes sold since 2003 by YSL that had red soles; (3) Louboutin lied to the Trademark Office to get the mark; (4) Louboutin interfered with YSL's business by convincing the department stores that YSL was infringing; and (5) Louboutin's trademark should be cancelled.

I'm finding this lawsuit pretty fascinating.  The hearing for the preliminary injunction (which would halt all sales by YSL immediately) is on July 22.

3 comments:

  1. No idea that YSL had done red soles since the 70s. That kinda seals the case for me.

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  2. Trademark law is a little different than patent law or copyright law in that sense, though.

    I think Christian Louboutin has a very good argument that the red soles are a well known mark associated with their brand now. (Just because someone else somewhere used a mark in the past doesn't mean you can never use it.)

    There will likely be a lot of discovery about YSL's history of using red soles and why they appeared to stop doing it from the 1970s until around the early 2000s. (In the hopes that an e-mail or something may lead to the inference that they are trying to pounce on the popularity of the red soles.) It will also be interesting to find out why YSL didn't oppose the registration of the trademark.

    However, some of YSL's claims about Louboutin lying about the use of red soles in the past to get the trademark make me pause; if that's true, the mark could be cancelled and they are out of luck.

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  3. okay, didn't even think about trademark vs copyright... can't even imagine all the research the legal team will have to do and how long this could take!

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