THE RED SOLES SAGA: LOUBOUTIN FACES THE USPTO


It is not over yet.

Last time the Louboutin v. YSL case was on the news we heard the New York Federal Court of Appeals (Second Circuit) decision on the appeal filed by Louboutin against the lower court decision.

The Second Circuit decided that Louboutin was entitled to maintain its red sole trademark, but limited it to "a red lacquered outsole on footwear that contrasts with the color of the adjoining (“upper”) portion of the shoe".

Now, it is the United States Patent and Trademark Office (USPTO) turn to address the issue of the amendment of the description of Louboutin's trademark (Registration No. 3,361,597). The JDSupralawnews reports that the USPTO proposal of amendment was the following:

"The color(s) red is/are claimed as a feature of the mark. The mark consists of a lacquered red outsole on footwear that contrasts with the color of the adjoining remaining portion of the shoe (known as the “upper.”) The dotted lines are not part of the mark but are intended only to show the placement of the mark."

Louboutin did not agree and instead proposed the following description: 

"The color(s) red is/are claimed as a feature of the mark. The mark consists of a lacquered red outsole on footwear that contrasts with the color of any visible portions of the shoe. The dotted lines are not part of the mark but are intended only to show the placement of the mark."

The USPTO concluded that this was not within the scope of the Second Circuit’s mandate and rejected Louboutin’s arguments.

Louboutin then filed a request with the Second Circuit to extend the deadline for it to consider arguments related to the USPTO’s pending amendment to the Registration. The parties have until February 4, 2013 to seek clarification of the language used by the Second Circuit.




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