Louboutin's red sole mark and the logics of fashion

This article investigates fashion theoretical perspectives on European and US litigation over Louboutin’s red sole mark. It argues that fashion has logics that make it a special case with respect to intellectual property law.

In recent disputes over Louboutin’s red sole mark including cases heard by the Court of Justice of the European Union and the US Second Circuit Court of Appeals a number of assumptions as to how fashions emerge and are disseminated are made. We test these assumptions against current fashion theory. In a fashion theoretical perspective the red sole is a polysemic gesture involving both branding and aesthetic communication through specific design features, which endows the shoe with aesthetic, social and economic value on the high fashion market. Accordingly, Louboutin’s red sole may be said to serve an aesthetic purpose and to work as an indicator of source at the same time.

In our view, fashion is a special case in relation to intellectual property law for two reasons in particular: (i) the temporal logic of fashion is different from that of most other products because fashion is change and (ii) fashion has logics where design features are utterly self-referential: for example, one purpose of the red sole is to announce that ‘this is fashion’. Strong protection of fashion stifles both of these logics and is, therefore, not good for the fashion market as a whole.