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Wednesday, January 25, 2012

What women's shoe fashionista Christian Louboutin can learn from RCA Victor

I was having a conversation today with my colleague Gregor Benko when he brought up what I thought was a non-sequitur. His topic was the lawsuit of a popular women's shoe designer Christian Louboutin versus Yves Saint Laurent for the duplicate use of the color Chinese red on the base of their shoes.  I said, "what does this have to do with music" and he said, "Aha, this designer can learn a lesson from the record industry, he won't win."  You see, Louboutin, who had patented the color Chinese Red for his shoe soles had lost the District Court trial and his appeal is currently all over the news.  The Circuit Court judge essentially said that the patent did not grant him exclusive use of the color on shoe soles and that his trademark was inconsistent within the framework of the Lanahan Act.(Lanahan Act in Wikipedia)

A little background on the case can be found here:

Hollywood Reporter take on the August Louboutin suit decision

Louboutin Sues YSL on appeal story

Ok, now your next question is, why the heck is he writing about this case, what does it have to do with the music industry.  Well Gregor was absolutely correct, RCA Victor did sue the Decca and Columbia Record  Companies over a virtually identical situation, even the same color!  You see the Victor Talking Machine Company as early as 1903 began to produce records with red labels for their very best artists.  They patented and trademarked their red labelled records which they called "Red Seal" and their luxury artists like Enrico Caruso, Jascha Heifetz and Wanda Landowska all recorded under this label.  They had threatened to sue any number of record companies over the years for the use of red labels in their commercial 78 rpm recordings.  In 1934, the British Company Decca came to America and they imported records from Europe with red and gold labels which looked very similar to RCA Victor's sans the dog. (Radio Corporation of America purchased Victor Talking Machine Company in 1929 and merged their names.) RCA Victor needless to say had a fit and threatened a lawsuit if they distributed such recordings.  Decca decided to distribute and Columbia Records seeing Decca was distributing red labelled records released their own similar version.  RCA Victor filed suit in Federal District Court in New York and it took until May 13, 1943 before a decision was reached.  The case, RADIO CORPORATION OF AMERICA v. DECCA RECORDS 51 F.Supp. 493 (1943) RADIO CORPORATION OF AMERICA vDECCA RECORDS, Inc., et al. SAME v. COLUMBIA RECORDING CORPORATION et al..  

In one of his final cases before his death, Federal Circuit Judge John M. Woolsey wrote the following decision after listening to the testimony of all parties and going so far as to listen to testimony from an MIT professor who provided expert testimony on color and the ability of the human eye to detect certain colors as it relates to the prism.

2. I find that the red label affixed to the centre of a round disc record is not the use of color in the form of a design, and, consequently, cannot be the subject matter of a trademark.

3. Under the physics of light, the record shows that one-third of the spectrum is of a red hue, in respect of all of which the plaintiff seeks to hang out a caveat sign to prevent any one else from using red labels on the centre of disc records. In other words, it wants to be in a position to claim this broad band of color against other makers of disc records preventing them from the use of red centres. This position is not maintainable.

4. The plaintiff has established a secondary meaning for the words "Red Seal" as indicating that it is the maker of goods so marked or so described.

5. The words "Red Seal" share the same infirmity as the color red, as being far too broad in its implications of exclusiveness. Hence it is void as a trademark, and, as a secondary meaning, cannot be the foundation of a remedy.
6. The defendants have carefully differentiated the Columbia product from the Victor product, by having the word "Columbia", and other of its trademarks, clearly printed on its labels so that any literate person of reasonable intelligence who looked at the record could not fail to understand it was not made by the plaintiff.
7. On the issue of unfair competition, I do not find any instance proved by evidence credible to me of any potentiality of confusion or of any actual passing off of Columbia products as Victor products.
8. Consequently, there has not been any unfair competition, to which issue we have found ourselves ultimately relegated.
9. The judgment of this Court, therefore, is that the complaint herein be dismissed, and I grant to the defendants all taxable costs, allowances and disbursements.

(Citation from the Leagle website)

Amusingly, Gregor has a real point, this case has been tried before, same color, same point and argument and the plaintiff, RCA Victor lost and lost big!  It would not appear that Louboutin owns the exclusive right to market Chinese red soled shoes in the United States.  It will be interesting to see if in fact the appeals court uses this case as a reference.


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