But red; it’s a color. An interlocking LV on a Louis Vuitton handbag or a Nike swoosh on a sneaker is one thing, some say. But monopolizing a color ... just doesn’t seem right.

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As it turns out, however, the Supreme Court has previously held that a color alone could be a trademark, in a case about a solid green-gold color on pads used in dry cleaning press machines, because the color served to identify the maker of the product — and had no other function. Thus an important caveat is that if the color is a useful feature in a product — green for farm equipment or yellow for banana-flavored gum — it can’t be a trademark, even if it is source-identifying, because excluding competitors from a useful feature would be anti-competitive. Applying this logic, the judge in the Louboutin case suggested that particularly in fashion, a single color could not be a trademark. The judge reasoned that in fashion, color is always “functional” — meaning that color is a useful aesthetic feature to which all designers should have access.

The red elephant in the room is that though it is the artistic and creative core of the fashion industry, design is not protected qua design, but only as a symbol of who created it. Fashion designers find no comfort in the federal copyright statute, which protects authors and creators, but does not extend to “useful articles,” including apparel and shoes.

A pending Congressional bill may offer some copyright protection for fashion design, but until then, fashion, unlike other visual media such as film and painting, remains a realm in which copying is perfectly legal — unless a design is deemed a trademark, that is. The Burberry plaid design, for example, is legally protected because it identifies Burberry, while the design of a dress the plaid may adorn is not, no matter how artful or original. Hence the pressure to frame design features — like an eye-catching color or a pleasing plaid — as trademarks.