Red All-Over: A Simple Distinction in Black and White

Photo by JamesRoseUK, some rights reserved

David Allen Green, new media legal darling and sedulous blogger at Jack of Kent (as well as approximately one hundred and one other places these days) wrote last week of another example of “Bad Law” – press articles which misrepresent or misunderstand the law to the extent that they serve only to undermine the public’s image of what the law is, and the excellent legal news reporting of the rest of the industry.

This theory of Bad Law reached the forefront of my mind again this week when a prime example cropped up in the Indy’s little sister, Itheir report on the latest twist in the Christian Louboutin v Yves Saint Laurent trade mark infringement case.

In brief, the case relates to a claim by Louboutin that YSL’s use of a red-painted sole on its posh (but not as posh as the claimant’s) high-heeled shoes is an infringement of his US registered trade mark (number 3,361,597 in case you’re wondering) for the use of red lacquer on the soles of women’s shoes.

Photo by Mr. Donut, some rights reserved.

I got itself into a right muddle over some simple intellectual property terminology and fell into the common trap of thinking all IP cases relate to copyright.  After initially making the right call and referring to Louboutin’s claim that a colour can be trade marked (ok they used the American trademarked, but we can let them off seeing as everyone seems to do that these days), the paper went on to say that Louboutin had claimed that YSL’s use of red infringed his copyright.  In fact, the excellent fashion law blogs at Styleite and Law of Fashion make no reference to copyright in their considerations of the case – presumably because it is not the same as trade mark infringement and therefore quite irrelevant to this case.

Bad Law reporting in relation to intellectual property has a long pedigree, and you only have to go back to mid-September to find another prime example in the national press.  In this article, the Daily Mail went full-throttle (the default setting for Mail news reportage) against British copyright law for banning the estimable British Sugarcraft Guild from allowing any Olympic imagery in their 2012 cake-baking competition.  All well and good (so long as you can stomach the Daily Mail’s firebrand style of writing) apart from the fact that LOCOG’s grounds for objecting to the cake contest were rooted in trade mark law and the specially enacted (and largely ridiculous) London Olympic Games and Paralympic Games Act 2006.

Photo (& cakes) by Micala, some rights reserved.

So why has copyright become a catch-all term for all intellectual property rights?

Are modern journalists really unable to get their heads round the distinction between the classes of intellectual property rights?  If so, they’re not alone.  Most lawyers outside of technology/media teams struggle to tell the difference, so why should the newspaper reading public be expected to know any better?  Especially if they are being spoon-fed by Bad Law news reporting.

As someone who works in the mysterious world of IP law on a daily basis, and who has been called upon to give training to lawyers, marketers and IT-bods, I now take it upon myself to offer up the following simple explanation:

TRADE MARKS (two words in the UK, please)

These protect any sign capable of graphic representation which distinguishes one business’s goods or services from another’s.  These include names (such as “Christian Louboutin”), logos (such as Apple’s apple), catchy slogans (like Audi’s “vorsprung durch technik”), colours (like Cadbury’s purple), or sounds (like the MGM lion’s roar).

Christian Louboutin has a US trade mark registration for the use of red soles in relation to ladies’ shoes.

Photo by verbeeldingskr8, some rights reserved.

PATENTS (that’s pah-tunts not pay-tents in the UK, please)

These protect inventions (processes or ways of doing things) and must be new and involve an inventive step.  UK patents cover things like Dyson’s bagless vacuum cleaner, Dunlop’s pneumatic tyre, Atkinson’s classic mousetrap and Churchman’s manufacturing process for chocolate (although strictly speaking the last three of these at least have expired).

For the avoidance of doubt, you cannot patent red-soled shoes (unless you have an innovative way of getting red paint onto the soles of shoes) – the concept of shoes is generally well-known.

Photo by Chen Hao Hsuan, some rights reserved.


These aren’t as well-known as their brothers, and cover the visual appearance of a product, perhaps the contours of a Coca-Cola bottle.

Christian Louboutin has a design registration for a style of zip used on a shoe.

Photo by MCaveen, some rights reserved.

COPYRIGHT (never copywrite or copyrite anywhere in the world, please)

This protects the expression of an idea, be it a literary, dramatic, musical or artistic work.  It covers, well pretty much anything, and arises automatically upon creation.  It can be recognised by the use of the © symbol.

Christian Louboutin will have copyright in his shoe designs assuming they can be considered an artistic work (and Miss HotShot certainly believes this to be true), but if he doesn’t raise this in his court case, it is not accurate to describe it as a claim of copyright infringement.

Photo by Sam Teigen, some rights reserved.