| With the economic globalization, competitions on the market become increasingly fierce, while the brand is playing a more and more important role. The latest survey also showed that color is significant to consumers, it enables them to identify their well-known commodity more quickly, and many consumers even identify the sources of origin of goods based on the color. Currently, many companies began using non-traditional trademarks, such as single color trademarks, as a new marketing tool of establishing distinctive brand image. After long-term use and promotion, single color trademarks tie closely to the companies. And the use of single color trademarks is particularly popular in the fashion industry where aesthetics and novel effects count a lot.Whether single color trademarks should be protected has been somewhat controversial in academic circles at home and abroad, most of the developed countries give legislative protection to single color trademarks and there are also countries which previously did not allow the protection but now has established the protection in the form of amendments, such as Japan, Korea and Spain. From here, we see the international trend of legislative protection of single color trademarks.Since color is the basis of fashion design elements, in the Louboutin case, whether fashion companies could use single colors as trademarks was questioned. It would make us to further think about whether fashion companies should be allowed to register single color trademarks? Whether the protection of trademark law for single colors should be extended to the fashion industry? The verdict in the Louboutin case inspired the author a lot, so in this paper, the author analyzed the Louboutin case and discussed whether single color trademarks should be protected in fashion industry.The author believes that, the fact that color has a pivotal role in fashion industry should not be the reason why single color trademarks could not be protected in the field. As long as a single color trademark meets the "distinctiveness" and "non-functionality" requirement, it should be protected under the trademark law. In regard to the question that how to improve the legal protection of single color trademarks in fashion industry, the author believes, while taking into account the unique role of color in fashion industry, issues should be analyzed case by case in judicial practices and the "functionality" doctrine should be applied with caution to deny the validity of single color trademarks in fashion industry. However, to avoid the over-protective effects which may bring about unfair competition, the use of single color trademarks in fashion industry should be strictly limited to the specific scope and situations.China has the huge potential for the development of fashion industry, it will inevitably encounter issues which the Louboutin case has discussed. China’s current legislation does not allow registering single color trademarks, but the market demand has already emerged. With the further subdivision of the market in the future, single color trademarks are bound to be used more frequently, and the demand for single color trademark protection would also surge. In this paper, the related issues of legal protection of single color trademarks in fashion industry are discussed with the analysis of the advanced experience in the U.S.. The author hopes to make a little contribution to the theory and practice of the protection of single color trademarks in China.Throughout the academic fields at home and abroad, there are few domestic scholars specializing in the field of intellectual property protection in fashion industry, and fewer publications on the topic, while the foreign scholars moved relatively more advanced. However, foreign scholars discussed mainly from the national law perspective. Thus, the possible innovative pionts of this paper are as follows: First, the author introduced and analyzed the legal protection status of the fashion industry at home and abroad and that of China’s fashion industry where there is a huge potential of legal protection demands.Secondly, the author made an analysis on the basis of the Chinese realities and offered the legislative proposals to protect single color trademark in fashion industry under Chinese law framework.Comparative analysis method and case analysis method have been used as research methods in this paper. Through the comparative analysis, the author compared the domestic and foreign legislation and judicial practice on the topic. Since the U.S has a wealth of judicial experience on the single color trademark issues, the case studies focused primarily on cases in the U.S., and the author then summarized the core issues and the experiences. |
