June_2013_JJR_Illustration_LR_Esq_Website_Graphic_2Trademark litigation has captured the attention of the fashion industry once again following Christian Louboutin’s recently filed charges in the Southern District of New York late last month, which alleges trademark infringement against Alba Footwear and Easy Pickins, the primary named defendants in a complaint submitted by Harvey Lewin, Esq., counsel for Christian Louboutin, and the more recent Louboutin v. Charles Jourdan case. The charges have raised questions about the future and direction of the federal circuit court’s outlook on Louboutin’s trademark infringement case in 2012, which culminated with the Second Federal Circuit Court ruling that Louboutin’s signature red soles could be protected under “certain circumstances” when the red soles contrast with the rest of the shoe. As the fashion and legal worlds now anxiously await developments in this new case, designers and fashion companies have mixed reactions to these recent cases in light of business pressures and potential “limitations” on creativity for those who wish to assure a competitive edge in an industry that relies on novelty.  In sum, it proposes an unprecedented challenge on the creative and business/legal ends of the industry. Aside from establishing trends or redefining new classics in fashion, developing unique products also has legal ramifications. The creative world in the fashion industry must also be concerned with how the impact of trademark protection for these goods will prospectively secure their longevity, business strength, and popularity with consumers. The answer lies, in part, in how the public values and understands these products. As fashion companies strive to keep their collections and products fresh and enlivened with a unique character, consumers’ appreciation for these goods touches on the legal concept of distinctiveness.   We will discuss distinctiveness in fashion law in upcoming posts in our DESIGNER SERIES, starting next week. Stay tuned.