shoes, status signals and property rights

Innovation: More (or Fewer?) Sole Rights

by Elaine Schwartz    •    Sep 8, 2012    •    1389 Views

A book that you write is your intellectual property. But what if you design the sole of a shoe?

As econlife described last year:

“The trademark of designer Christian Louboutin, his red soles are supposed to represent glamour, luxury and hidden status. Or, as stated by Mr. Louboutin, ‘A shoe has so much more to offer than just a walk.’

Agreeing, fashion house Yves Saint Laurent (YSL), designed its own line of luxury shoes with colored soles and wound up in a Manhattan courthouse. Louboutin claimed trademark infringement. Saying a red shoe sole is “ornamental and functional,” the court supported YSL.”

But now, most of the decision has been reversed.

A federal court of appeals has said that except for a monochromatic red shoe, Louboutin and only Louboutin has the right to a red sole. Saying that, “We hold that the lacquered red outsole, as applied to a shoe with an ‘upper’ of a different color, has ‘come to identify and distinguish’ the Louboutin brand and…qualifies for trademark protection.”

If your can call the sole your intellectual property, what about the shoe?

Probably not. Like jackets and pants and shirts, shoes are too utilitarian to be protected by intellectual property laws. We all have the right to copy their design. (Please see below for more on what is protected.)

A debate that we can trace back to Alexander Hamilton, James Madison and Thomas Jefferson, the question about innovation and whether and how long we can own what we create has been timeless. While patents, copyrights and trademarks can propel a market economy, sometimes they constrain progress.

For fashion, experts like Johanna Blakley believe a copycat culture is good.

Sources and Resources: You can see both sides of the fashion industry “copycat” debate at econlife, here and here and read more about both court cases here and here. In addition, I recommend this wonderful TED talk and a more serious econtalk interview from Johanna Blakley. For more on Christian Louboutin, this New Yorker article was an especially good read.

copyright protected and unprotected industries

Fashion and other industries without intellectual property protection from TED talk, Johanna Blakley

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