Last Tuesday's oral argument over the Louboutin v. YSL case at the US Court of Appeals for the Second Circuit ended inconclusive.

After the rejection of Louboutin's preliminary injunction last August by Judge Marrero, the shoe-designer appealed from the decision and both French luxury maisons were back in court last Tuesday, this time in front of three judges, Straub, Cabranes and Livingston. 

Once again, Louboutin was asking the court of appeals to order an injunction against YSL to stop the company from selling red-soled shoes, including Tribute, Tribtoo, Palais and Woodstock styles, based on trademark violation of its red-sole registration awarded by the US Patent and Trademark Office (USPTO) in 2008. 

Christian Louboutin's USPTO
Trademark Registration No. 3361597

YSL Tribute
YSL Tribtoo
YSL Palais
YSL Woodstock

The judges focused on with two key issues: whether Marrero properly interpreted US trademark law, and whether the case should be sent back to the District Court for additional fact finding, such as whether there would be consumer confusion between the brands should YSL continue selling its red-soled shoes.

The opinions varied amongst the three judges. Judge Straub seemed to lean more towards Louboutin's arguments and pressed YSL's lawyer, Bernstein, to explain the factual basis for calling color an aesthetic choice in fashion, asserting that he didn't see the findings that dictated that ruling [Judge Marrero's ruling].

Judge Livingston was friendlier to YSL's argument and told Lewin, Louboutin's lawyer, she was "stumbling" over the "significant function" served by Louboutin's red soles, and asked "doesn't it hinder competition if can't make monochromatic shoes?".

Judge Cabranes asked Lewin why Louboutin had appealed the preliminary injunction, rather than waiting until Marrero issued a summary judgment ruling on the validity of Louboutin's trademark and asked "what do you want from us?". Lewin said he wanted the Second Circuit to enjoin sales of YSL's all-red shoes. "You can't expect us to do that!" Cabranes said.

Lewin requested the court to order additional discovery to take place at the District Court level., a request that YSL already made in its appellate filings. As such, the Second Circuit will likely send the case back to the district court for discovery and a summary judgment ruling.

More on this case to come. Stay tuned!

- Mina



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