Aside from our opinions on the design of said workout gear, though, or any laughs about yoga pants makers embroiled in a battle to the pants-off, Jones points out that this is a big deal in the design industry in terms of intellectual property and represents a new way of thinking "at a time when there are few legal protections for designs on apparel." Recently the design world battle was over Christian Louboutin's trademark red sole, and whether Yves Saint Laurent could put red soles on the bottoms of their own shoes. Ultimately a federal court of appeals ruled that Louboutin had that exclusive right, given some stipulations. It wasn't just about the color red on the sole, but about how they employed it, with contrasting red soles. From the decision:
We further conclude that Louboutin’s trademark, consisting of a red, lacquered outsole on a high fashion woman’s shoe, has acquired limited “secondary meaning” as a distinctive symbol that identifies the Louboutin brand. As explained below, pursuant to Section 37 of the Lanham Act, 15 U.S.C. § 1119 we limit the trademark to uses in which the red outsole contrasts with the color of the remainder of the shoe. We conclude that the trademark, as thus modified, is entitled to trademark protection. Because Louboutin sought to enjoin YSL from using a red sole as part of a monochrome red shoe, we affirm in part the order of the District Court insofar as it declined to enjoin the use of red lacquered outsoles in all situations. However, we reverse in part the order of the District Court insofar as it purported to deny trademark protection to Louboutin’s use of contrasting red lacquered outsoles.
Of course, brand names and logos have generally been protected as the property of the various fashion houses that create them. But where the yoga pants battle, and some of these new battles over shapes and colors, break new ground, is in the basic functionality of the item so designed. In the past, designers weren't able to protect designs like the shape of a blouse or a T-shirt, a button-down or a collar. What does that do for competition, or the fact that ideas do generate spontaneously, sometimes, and should be allowed to bear out in a competitive environment, if they are given this protection and trademark exclusivity?
Wired's Kal Raustiala and Christopher Sprigman write that the Louboutin example as well as Apple's accusation that Samsung had copied their iPhone and iPad designs "illustrate the perils of letting our concern over copying override the need for competition." They add, of Apple's use of, essentially, the rectangle, "there is good reason to question whether a design patent over such a basic shape should ever have been granted in the first place." It's expected that Calvin Klein will fight back similarly, stating that Lululemon shouldn't have received the design patents in the first place, that that particular waistband, in fact, is not really innovative at all.