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@BillMcGev’s very interesting take on the Louboutin lawsuits - Red sole diary: Christian Louboutin can trademark a color, but it doesn’t help him much | Capital New York

If people began copying Louboutin’s red soles the year after he first slathered on that nail polish, they would face no legal impediment. The color would be decoration, but not branding—at least not yet. (That’s why Louboutin’s own lawyers are at such pains to emphasize how long ago he painted his first sole.) Perhaps red soles would become the season’s must-have. Louboutin might well have earned some renown within the industry for inspiring such a trend, but he couldn’t control it.

With time, luck, success, and some savvy marketing, however, Louboutin now benefits from a strong public association between his brand and those red soles. If you copy them today, you may face a lawsuit as well as tsk tsks from Tim Gunn. Now, you are interfering with the long-term communications between Louboutin and the public. If, however, you can show that you need to copy a design feature that “belongs” to someone else—as Y.S.L. may argue it needs red soles for red shoes—then you can get off the hook.

As a result, fashion now gets intellectual property protection that’s the mirror image of patents and copyrights. Those versions of I.P. apply right away, and eventually expire (think of prescription pharmaceuticals that eventually get generic competition when their patents lapse). Leaving fashion I.P. to trademark inverts this pattern, telling would-be copiers to get it while it’s hot.

Which might just answer that other claim about the meaning and purpose of originality in fashion: Fashion must innovate to survive, but it also must imitate and interpret. In a funny way, trademark law leaves fashion in a position to do both.