Trademark law's "aesthetic functionality" doctrine, one year later (or "The belated release of my LANDSLIDE magazine article")

Posted by Charles Colman

LAW OF FASHION has discussed trademark law's "aesthetic functionality" doctrine in the past; after all, one could hardly cover the "fashion law case of the decade" without mentioning this defense.  But until now, LOF hasn't been able to post this writer's in-depth article for the Nov./Dec. 2011 issue of the American Bar Association's LANDSLIDE magazine, "A Red-Leather Year for Aesthetic Functionality."  As more than a year has passed since the article was published, LOF thought it might be time to ask the powers that be for permission to post the article here, and they kindly obliged...

 

Keep in mind that the article was written in August and September 2011, before the Louboutin v. YSL case went up to the Second Circuit -- and, of course, many other trademark lawsuits ago.  Also, please forgive my description of Louboutin's federal trademark registration as "longstanding": while the company has used the red sole since the early 1990s, it was only registered with the USPTO in 2008 -- a significant point for the appellate court's disposition of the case.  That said, feel free to evaluate my powers of prediction, if you like...

 

[NOTE: If the document is not displaying properly or the text is too small to read, view/download the article at SSRN or Scribd.] 

 


 



[This post is for entertainment and informational purposes only, and does not constitute legal advice or create an attorney-client relationship among any individuals or entities. Any views expressed in this post or at the linked web pages are those of the relevant writer(s) on a particular date, and should not necessarily be attributed to this writer, his law firm, its agents, or its clients. Neither LAW OF FASHION nor any person or entity associated with it can or will warrant the thoroughness or accuracy of the content here or at the cited sources.]