1.“Why should the red sole that identifies a shoe as a Louboutin shoe not be registered as a trademark? Are there policy reasons that support this approach?” Discuss.
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1.“Why should the red sole that identifies a shoe as a Louboutin shoe not be registered as a trademark? Are there policy reasons that support this approach?” Discuss.
Introduction
A trademark is a type of intellectual property represents a distinguishable aspect of a product that is protected and exclusively used by a single party in the interest of financial, social and economic needs, however, the issuance trademarks is guided by rules, policies, regulations, and processes that pose as barriers to direct issuance of trademarks to business or individuals. Trademarks are composed of a distinctive combination of colors, words, signatures, letters, monograms, numbers, pictures, and drawing that identifies companies or individual products in the market or industrial production. The acquisition of trademarks has a wide range of benefits as they provide exclusive evidence of ownership, enables in keeping away the potential infringes, and enables the protection of rights to businesses and individuals. The trademarks enable people in the market to distinguish products especially in the cases that the said products share the similarities of use, shape, or other aspects. The trademark used ensures that consumers in the market can link a product with the producer thus making it possible to advance and maintain the brand name. Consequently, it is vital to note that stringent measures are applied while issuing trademarks to ensure that the issuance of trademarks is streamlined and thus there is no conflict between the new trademark and the already existing trademarks in the market. In this regard, the issuance of a trademark to a shoed branded as Louboutin due to its purported unique red sole with not be possible with the application of rules, regulations, and measures employed in the issuance of trademarks. The issuance/registering of a trademark to Louboutin shoe based on its purported unique red sole will be made possible due to the operating and guiding policies.
Trademarks conflicts
Different policy guidelines will make the registration of a Louboutin shoe based on its red sole to be rejected due to conflicts, confusion, and hindrances that such an attempt would introduce to the market . The policies used in the issuance of trademarks to businesses and individual businesses streamline the operations such that resemblance or similarities in trademarks is effectively avoided. The registrar or agencies tasked with issuance and registration of trademarks have the duty and discretion guided by policies to determine the rejection of a trademark application. First, the Louboutin shoe trademarks registration will be rejected based on the generic policy terms that reject the application on the basis that the actual aspect of an item is used as a basis of registering the trademark with a common aspect of life . In this regard, red sole is a common aspect that has been consistently used in the fashion industry to appeal to the consumers, and thus seeking a trademark based on a red sole will leave other partners in the industry at a disadvantaged position. Registering such a trademark means that other players in the industry would not be in a position to produce shoes with red soles due to the trademark protection and restrictions.
Descritive term policies
Registering of Louboutin shoe trademark based on a red sole will be rejected on the descriptive terms policies. The descriptive policy terms demand that common terms that are used to describe general goods should not be used as a basis for seeking trademark registration . Common terms are used to describe other similar products and thus using them to gain a trademark will place other players at a disadvantaged position in marketing their products. The common terms arise from the general aspects of life such as colors (red), or feelings (sweet). Similarly, laudatory and qualitative terms such as innovative, classic, beautiful, rapid, or supper are rejected based on the commonality and factual aspects of products and goods. It is considered unfair to use the laudatory, and descriptive will be rejected from being used in trademarks . In this regard, the red sole is a common qualitative term for the shoes produced by other companies and thus they cannot be used to register trademarks. It is considered unfair and inappropriate to assign trademarks to products and companies based on common aspects of life that are at the disposal of other manufactures or companies. In this regard, the Louboutin shoe manufacturer will be required to disclaim the right to exclusively use the word “RED” separately and apart from the mark as a whole.
Deceptive nature of the trademark
The Louboutin shoe trademarks will be rejected based on its deceptive aspects into the market. The deception in trademarks will arise by the fact that it will result in misleading the consumers on the quality and nature of the product concerning other products in the market . Approving the Louboutin shoe trademark based on the red aspect of the sole will amount to confusion among the consumers when they are purchasing shoes of other manufacturers with the red sole on them. It is important to note that there are different manufacturers in the markets and they are likely to produce different shoes with the red sole as an aspect of fashion . In the case, that the Louboutin shoe trademark is approved based on the red sole then it means that all shoes in the market having the red sole will be presumed to be Louboutin shoe. This aspect will be unfair in a competitive market due to the confusion caused to the consumers who are keen on the quality and brand of the product they buy. Therefore, Louboutin’s shoe should seek another aspect to base its trademark as opposed to the color (red) to avoid the confusion in the market as well as unfair competition with other shoe manufacturers.
Infridgement of trademark rights
Approving the Louboutin shoe trademark based on the red sole will result in conflict with prior trademark rights and thus the application should be turned down. It is important to note that having identical trademarks for the same products results in conflict between the manufacturers. In the fashion industry, the right to use any color in the production of different goods is implied . This means that any fashion company has a right to use any color in whichever way they deem appropriate and appealing to the customers. The fact that Louboutin shoe wants to use red color as the basis for the trademark means that they will have exclusive rights to use the red color on the shoes they produce. This fact will result in conflicts in the market and manufacturers who use a similar color in their products and especially on the soles. Approving the Louboutin shoe would set bad precedence since different fashion companies will begin using colors as the basis of seeking trademark thus disadvantaging other players in the market. Therefore, it is advisable that the trademarks that are considered similar and common to the existing aspects of life that are already in use.
Lack of distinctive aspect
The registering of the Louboutin shoe trademark will be rejected on the basis that it lacks the distinctive aspect to differentiate the product in question from other products in the market both similar and different . The distinctive words ensure that a product can be identified in the market and be differentiated from other products in the market. Words to be used for the approval of the trademarks should be coined words that relate to the product. Coined words are invented words with no real or intrinsic meaning . The coined works can be effectively protected since they are distinctive and they cannot be directly linked to any product. In this regard, the concerned company will have to advertise the word used in the trademark to enable the consumers and the market to link the product with the name. In this case, using the word red as a basis for the trademarks will be inappropriate since it can be used in any industry and field for different purposes and thus it cannot be a preserve of a single entity. Therefore, organizations and businesses need to use distinctive words and signs that are not attached to any intrinsic or real meaning in registering trademarks.
Restriction of protection scope
The use of the red aspect in the registering of trademarks amounts to the restriction of the scope of protection thus disadvantaging other organizations that would with to use the color in their trademarks. The use of color as a basis of forming a trademark means that other parties are restricted from using the color . In this case, color is a common aspect of life and thus it should be used or incorporated as an aspect of a trademark as opposed to being a major aspect of a trademark. For instance, the color can be used for the background of trademarks or used in the differentiation of the close trademarks. All parties have the privilege of using colors in their interest but the user should not be a privilege of a single party as it would disadvantage the other parties . The fact that Louboutin shoe uses color red as a basis for its exclusive trademark reduced the scope of protection and thus the application should be rejected. Therefore, common aspects of life such as feelings, geographical locations, or colors should be exclusive rights to specified parties in the development of trademarks.
Reservation of specified teademarks to intenational organization
The application of the Louboutin shoe founded on the color of a sole will be impossible since there are colors and signs reserved for states, public and international organizations. The fact that colors are reserved for the recognized political or geographical organization means that no single party can have exclusive rights to use them as the basis for obtaining trademarks . Colors are used in drawing the signs, in national flags and official names, and thus colors are available for use to different parties in developing trademarks that identify them. For instance organizations such as Red Cross consistently use the red sign in their flags, emblems, and other official uses. The fact that aspects such as colors are preserved for organization and specified individuals meaning that the common aspect should be incorporated in trademarks to appeal to their audiences and consumers . The fact that Louboutin shoes want to exclusively use red color in its design and fashion to develop a trademark makes it unfair and inappropriate to other organizations that use the same color for their identification and protection purpose. In this respect, Louboutin shoe should not solely be used as a basis of the trademark but it would rather be part of the trademark to ensure that are parties can use the color in their trademark identification.
Disregard of legal policies
The legal policies founded on the basic legal framework will prevent the approval of the Louboutin shoe based on the red color on the sole to distinguish and protect the product. The development and approval of the trademark are directed towards ensuring fairness, justice, and equality to the people and organization in the course of conducting businesses and advertising their products . The policies derived from the constitution, Trademark Acts, the Paris Convention for the Protection of Industrial Property, the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, the Madrid Agreement Concerning the International Registration of Marks and Agreement on Trade-Related Aspects of Intellectual Property Rights. The Louboutin shoe Trademark registration does not meet different legal policies thus rendering it ineffective. In this case, the trademark will be characterized by deception and confusion to the consumers and business counterparts in the market . The use of the red will as a basis of trademark approval results to conflict among businesses who would wish to use a similar color in their sole of have previously designed their product using the color. The approval will further confuse the customers thus introducing unfair business operations in the market. Consequently, the law and policies reserve certain colors, and actions in the development of the Trademark are a reserve of a few international organizations . For instance, the use of phrases such as ‘Geneva Cross’ or ‘Red Cross’ and uses of red crosses and red background for crosses are preserved for specified international organizations, and thus the use of red by Louboutin shoe will be deemed inappropriate. The legal policies guiding the creation and approval trademarks provide guidelines to ensure that the rights and privileges of other parties are not infringed or affected as well as preventing unfair competition.
Additional aspects in the trademarks to make it valid
The fact that a trademark needs to have different characters and elements as opposed to a single element of color disqualifies Louboutin shoe trademarks as a proper and sufficient trademark for the business . The trademark for Louboutin shoe is directed towards having a red color for the sole makes it lose the meaning since other features should be added to it. In this case, a proper and sufficient trademark needs to be easily seen, read, remembered, and spelled thus making it effective for different types of advertising. The trademark, in this case, relies on the red color for identification and protection thus making the trademark insufficient. In this regard, the management or the relevant parties concerned with the development of the Louboutin shoe trademark need to incorporate an element of written content, pictures or signatures and incorporate with the red color on the sole thus making it meaningful and distinct to the competitors and consumers in the market . Therefore, seeking a trademark approval for a shoe using a red color on the sole is not sufficient since it will be against different policies that result in conflict and thus other aspects of intellectual property need to be incorporated in the trademark thus making it acceptable and correct.
Conclusion
Louboutin’s shoe action of seeking the approval of a trademark for their shoe by basically having a red color for the sole will fail since it is against policies that provide the guidelines for effective and sufficient development of trademarks. The policies provided ensures that the interest of different parties such as businesses, governments, and consumers in the market are considered thus ensuring fairness, justice, and equality are sufficiently upheld. The Louboutin shoe trademark has failed to meet a wide range of policy guidelines and it will have to be disqualified. First, the use of the plain red color in the trademark will result in confusion, conflicts, and hindrances among different players in the market.
The red color used in the trademark development violates descriptive policies since it adopts a common aspect as its basis for trademark formulation. The trademark as deceptive elements that will confuse the market misleading other parties to believe that every shoe with red sole in the industry is from Louboutin. The trademark using the red aspect will consistently infringe on the rights of the other parties in the market by interfering with their market rights. More so, the common aspects to be used such as colors are a preserve of international organizations and nations. In this case, Louboutin’s shoe cannot be allowed to exclusively use color red as a subject to the trademark. It is vital to note that the privilege of using common things such as colors and the geographical region is a preserve of organizations or states. Moreover, the lack of distinctiveness will be a basis for disapproving the trademark based on the color. The colors can be used by different organizations thus leading to confusion.
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