in Irene Calboli & Srividhya Ragavan (eds), Diversity in Intellectual Property: Identities, Interests, and Intersections
Cambridge University Press, 2015
Introduction (excerpt): During the past two decades, the luxury industry rapidly developed and expanded its presence in many major cities around the world. In 2013, global luxury goods sales reached approximately $300 billion. Culturally, as status symbols, luxury goods function to define class, social distinction, and personal beliefs and values.
Luxury companies utilize their trademarks as status-signaling symbols to market their products and services. From this perspective, trademarks have become one of their most valuable assets...
But should trademark law serve the interests of luxury companies and their rich consumers? This chapter explores this issue through the lens of the recent litigation between two French luxury fashion companies: Christian Louboutin and Yves Saint Laurent. The former has made the red sole the iconic design feature of its footwear for women. Christian Louboutin asserted that it should complete "territorial" control of the red sole, to be landmarked by flags of trademark protection.
By focusing on this case, this chapter opens a perspective on the ramifications of the trademarkability of the red sole for the role of trademark law in distributing social resources and accommodating the diversity of interests of various stakeholders. It argues that we should reconsider whether Louboutin's red sole mark is distinctive enough to warrant trademark protection. The chapter proposes that this issue must be examined from the social justice perspective. It contends that social justice should have the trumping power to deny trademark protection of the red sole mark even if it is adequately distinctive...