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The saga of the Christian Louboutin lawsuit for trademark infringement continued this week as the case was brought in front of a federal appellate court. Louboutin, who trademarked the red sole, known to fashion lovers everywhere, argues that four styles of YSL shoes from a 2011 collection infringed on that trademark. Louboutin filed an injunction, requesting that YSL cease selling the shoes until the matter was settled but Judge Victor Marrero rejected Louboutin’s request, stating that color “serves ornamental and aesthetic functions vital to robust competition.”

The seeming shrug-off of the injunction highlights the law’s lack of conviction when it comes to fashion trademarking. The Supreme Court has found that a color can be trademarked when that color serves to identify the maker of a product (that case dealt with the color of pads used on dry cleaning press machines), but it is unlikely that Louboutin will be given a monopoly on red soles. One of the issues of this case is whether or not the color is functional, an aesthetic option, meaning all designer should have access to it, or whether this specific use of color is like a branding logo.

There is a bill waiting for congressional approval that may afford designers more coverage under copyright law, but until then, it is up to the courts to judge based on current statues and precedence, which recognize designs not for the designs themselves, but for their representation of a designer. What do you think should or will be the future of fashion design copyright law?

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