The same can apply for color trade marks and trade dress in the U.S. as long as the color has acquired a "secondary meaning" and is non-functional, i.e. the color does not function except as an indication as to source (Qualitex v Jacobson) Ask any shopper on Fifth Avenue and the AmeriKat thinks one could quickly come to the conclusion that the primary function of the red-sole is that of indicating the source of the shoe as being Louboutin - that or signalling to the poor… [read post]

  (Cherny v. [read post]

By way of a reminder, however, to obtain a preliminary injunction, Louboutin must have established (1) irreparable harm and (2) either (a) likelihood of success on the merits, or (b) sufficiently serious questions going to the merits of its claims to make them fair ground for litigation, plus a balance of the hardships tipping decidedly in [its favor] (Monserrate v New York State Senate (2010)). [read post]