Yesterday, the three Second Circuit judges in New York got to hear an appeal in what I can only imagine was one of the best dressed courtrooms they’ve ever seen. Their job was to determine not the factual merits of the case of Louboutin v. YSL, which is the job for the trial court, but two issues of law. Did Judge Victor Marrero err in his interpretation of trademark law, by ruling that colors are inherently functional, thus unworthy of trademark protection? And if so, should an injunction be so ordered, or is a retrial necessary to determine a likelihood of confusion?
Clad in a navy pin-striped suit, with the support of friend and President of the CDFA, Dianne Von Furstenberg by his side, Louboutin and his lawyers asked that their injunction denial be overturned. The outcome of this appeal will immediately be taken into consideration by Marrero, who agreed to hold off on the decision to cancel the Red Sole Mark, until after the appeal.
YSL created a legitimate and reasonable hurdle for Louboutin to overcome. Continue reading