Christian Louboutin (Louboutin), famous for its signature red-soled shoes, is suing Yves Saint Laurent (YSL) for trade mark infringement.

In a claim filed in the New York Courts, Louboutin is claiming that YSL’s shoes with red soles are infringing its trade mark. Louboutin argues that YSL’s use of the red sole is “likely to cause and is causing confusion, mistake and deception among the relevant purchasing public”.

Louboutin is claiming damages of at least $1 million and is also seeking an injunction to stop YSL manufacturing and selling the red-soled shoes. However, in order to succeed, Louboutin will have to prove that YSL’s use of his mark confused customers.

Confusion is difficult to prove, and in this case the task will be made harder as a result of the high cost of each parties’ shoes and the sophistication of the intended consumer. This is because, generally speaking, a transaction of this kind is not entered into lightly and therefore any confusion as to the origin of the shoes is likely to be remedied before purchase. However, Louboutin may be able to argue initial interest confusion, that is, the consumer was confused by YSL’s use of the distinctive red sole at the time of interest in its shoes. The argument here is that it matters little whether the initial confusion was corrected by the time of purchase; what matters is that it happened at all.

Although different to the position in the UK, this case raises the interesting question of whether it is possible for a consumer to become confused in relation to products manufactured by direct competitors, who share the same target demographic and who are equally well-known and respected within the fashion world. If Louboutin is unsuccessful, this case could have serious implications for owners of trade marks in the US and may cast serious doubt upon the protection afforded to them.

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