This week a federal appellate court will hear arguments in a case involving this very question. The issue arises in connection with shoes, specifically, the vivid red soles beneath Christian Louboutin shoes. The high-end designer says four separate styles of Yves Saint Laurent shoes infringe its trademarked sole. All four shoes are red all over — including the soles.
Last summer a federal court denied Louboutin’s request that YSL be stopped from selling its red shoes pending resolution of Louboutin’s effort to enforce its federally registered Red Sole Mark. (In its opinion, the court said Louboutin’s trademark infringement claim was unlikely to succeed.) Now, the shoedown escalates to the appeals court.