Term Paper: Trademark Infringement Trademark and Patent

Pages: 3 (965 words)  ·  Bibliography Sources: 3  ·  Level: Master's  ·  Topic: Law - Business  ·  Buy for $19.77


[. . .] The consumer may not be that naive and giving the monopoly on color many not be such a bright idea.

The problem with color identity is that in various industries, customer tags a product with a color. That is why the international agreement on 'Trade-Related Aspects of Intellectual Property Rights', including 'Trade in Counterfeit Goods of the TRIPS Agreement' wants to include the aspect of color as discussed earlier. There are some significant tests for the color to be attached to a product and this is called the functionality test. Thus there must be a specific symbolism that would be associated with the unique product, or there must be a unique design. There could be logo and text that are unique not only in font but also in color.


There is confusion over colors. Because customer confusion is very difficult to prove, confusion is difficult to prove. But the argument that 'consumer was confused by YSL's use of the distinctive red sole at the time of interest in its shoes raises the question whether a consumer is to become confused by the color of products that are in the demographic area and which are all equally well-known can be sustained? Confusion prevails over the issue, and it is not a settled law yet. (Bennett, 2012)

Thus it can be stated that while color is a part of the product differentiation it is not to be seen in isolation but in conjunction with the market, the product and its design and if the customer will be induced away from the product on account of the color. Thus it can be stated that while the specific shade of red, in a particular part of the shoe, can be protected by trademark laws as long as the color proves to have a distinctiveness that is associated with the firm or product. It is a different question as to whether the color red becomes proprietary. Seen in the context of the cut throat competition of the market, the pressure of the market and corporate objectives and the pressure of business will often make the management that control the activity of the company to commit transgressions, and this no doubt will also be violation of patents somewhere some time. (Schlegel; Weisburd, 1992) This question may thus be partly resolved.


Bennett, Simon. (2012) "The Height of Confusion: Christian Louboutin v YSL Trademark

Infringement" Fox Williams' Fashion Law Group.

Retrieved 14 November, 2012 from http://www.fashionlaw.co.uk/site/fashion_focus/height_of_confusion.html

Elliott, Hannah. (2012) "Both Sides Claim Victory in YSL v. Louboutin Shoe Case"

Retrieved 14 November, 2012 from http://www.forbes.com/sites/hannahelliott/2012/09/05/both-sides-claim-victory-in-ysl-v-louboutin-shoe-case/

Morton, Jill. (2011) "Trademarks over the rainbow: Can a brand own a color http:namedropping.wordpress.com/tag/tiffany-blue/

Schlegel, Kip; Weisburd, David. (1992) "White-Collar Crime Reconsidered"

WTO. (2002) "The Doha Declaration Explained" Retrieved 14 November, 2012 from http://www.wto.org/english/tratop_e/dda_e/dohaexplained_e.htm [END OF PREVIEW]

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