A pair of “limited edition” sneakers that Donald Trump revealed at Sneaker Con in Philadelphia this weekend appear as though they could be a lawsuit waiting to happen. Looking beyond the gold body of the “Never Surrender High-Top” sneakers, the stars and stripes design that wraps around the ankle, and the boldly-emblazoned letter T that adorns the side of the shoes, at the heart of an as-of-now hypothetical lawsuit that could be waged against the 2025 Presidential hopeful is the red-hued soles. As most will know, this particular design element is the well-established signature of another footwear brand, Christian Louboutin. Nonetheless, Trump recently released a run of 1,000 pairs of the sneakers, which are listed as “sold” out on the gettrumpsneakers.com e-commerce site, for $399 each.
The potential issue is a relatively obvious one. Christian Louboutin has consistently (and almost exclusively) offered up footwear with a specific red hue on the soles since its founding in 1992. And it has enforced its rights in that red sole in a growing number of trademark lawsuits across the globe. In fact, the company’s trademark rights were brought to the forefront over two decades after it first launched its famed footwear in the lawsuit that it filed against fellow high fashion brand Yves Saint Laurent for alleging infringing its rights in (and a U.S. trademark registration for) the red sole by way of high heel red-soles shoes of its own.
In furtherance of its April 2011 complaint, which it filed with the U.S. District Court for the Southern District of New York, Louboutin pointed to a registration issued to it by the U.S. Patent and Trademark Office in 2008 for its red sole for use on “women’s high fashion designer footwear.”
The case ended up making its way to the U.S. Court of Appeals for the Second Circuit, which confirmed that a single color is capable of functioning as a trademark. In terms of Louboutin’s registration, the Second Circuit kept it in place (and thus, refused to invalidate it, despite YSL’s efforts to do so). The court did order the trademark office to limit the scope of the registration to extend only to a “red lacquered outsole” used on footwear that “contrasts with the color of the adjoining (‘upper’) portion of the shoe.”
The “Never Surrender” High-Top
While the shoes at issue in a hypothetical Louboutin v. Trump case are certainly not an example of “women’s high fashion designer footwear,” which is type of the goods covered in Louboutin’s registration, that may not be a deal-breaker. Louboutin could almost certainly argue that its rights are not exclusively limited to lacquered red-soled high-heels and that it maintains (limited) common law trademark rights in variations of the non-lacquered red sole when used on other types of footwear, including sneakers. Louboutin has, after all, consistently produced an array of sneakers for men – from casual suede sneakers to athletic-inspired high tops – and all of these styles are adorned with the company’s signature red sole. (Yes, others, including Nike, have done so, as well – albeit not with the same level of consistency as Louboutin and in more than one case, on shoes with a red upper.)
With the foregoing in mind, it is not impossible to imagine Louboutin waging a trademark infringement claim (as it has done in more than one case in the past), arguing that consumers are likely to be confused as to the source/nature of the red-soled Trump sneakers. In other words, Louboutin would (hypothetically) argue that the red sole of the “Never Surrender High-Tops” is likely to prompt consumers to erroneously believe that it is in some way connected/affiliated with the Donald Trump sneakers and/or endorsed his production of them. (This would not be an open-and-shut case for Louboutin, of course, in light of various elements that narrow the scope of its rights in the red sole, others uses of red soles in the sneaker space, etc.)
However, maybe more interesting that an infringement claim, and any corresponding false designation of origin, unfair competition, etc. claims that it could make is the potential trademark dilution cause of action that Louboutin may have in its favor, assuming that it can show that its red sole mark is famous. (It is worth noting that courts in other jurisdictions, including the Delhi High Court, have found Louboutin’s red sole to be a “well-known” mark for dilution purposes in light of the company’s widespread use and advertising of the red sole (in India and beyond) and in light of the fact that consumers in India “were well aware of this goodwill and reputation even before [Louboutin began using] the trademark in India.”)
Putting the issue of fame aside, it is not difficult to see how Louboutin could argue that Trump’s use of the (potentially infringing) red sole does not only diminish the public’s perception of its mark but that the reputation of the red sole mark is being harmed through an association with Trump.
As for whether MAGA supporters that purchased the Donald Trump “Never Surrender High-Top” sneakers will actually receive red-soled high-tops when their order arrives (in July 2024), it seems somewhat unlikely. If nothing else, Louboutin’s counsel is working on a cease-and-desist letter as we speak. But more than that, there is a term in the FAQ section of the Trump Sneakers site that provides the former president with an out. In response to the question of whether consumers will be getting “the exact sneaker or fragrance that [appears] on the site,” Team Trump stated, “The images shown are for illustration purposes only and may not be an exact representation of the product.”
Chances are, those red soles might never come to be, but a lawsuit could be in the works either way … even if it could be a bit of a hard win for Louboutin.
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