Read the following Case and answer the questions given below:

Companies in the fashion industry typically defend their trademarks aggressively but traditionally have not relied on patents to protect their intellectual property because few legal protections for clothing designs exist. Fashion designers constantly come up with new designs for garments but find that protecting, say, the shape of a lapel or the cut of a cuff, is difficult because clothing is functional and not novel, useful, and not obvious in light of current technology, which receiving a patent requires. Fashion companies usually look to trademarks to protect their brands. Christian Louboutin SA v. Yves Saint Laurent SA. French luxury shoemaker Christian Louboutin (CL) recently filed a trademark infringement lawsuit against Yves Saint Laurent (YSL), claiming that CL had the right to trademark protection for the China red soles the company uses on all of its high heel shoes and that YSL had violated its trademark by introducing a line of monochrome high heel shoes in which the red shoes had red soles. CLs attorney argued that Louboutins use of the red soles had transformed an everyday item, the sole of a shoe, into a work of art and created a wellrecognized trademark. The red sole has become synonymous with Christian Louboutin and high fashion, the company pointed out in its complaint. Louboutin turned a pedestrian item into a thing of beauty. Celebrities such as Scarlett Johansson, Oprah Winfrey, Gwyneth Paltrow, Halle Berry, Beyonc, Christina Aguilera, and many others, often sport Loubs. CL also pointed out that other companies have trademark protection for certain colors, such as Tiffany and Companys robin-egg blue boxes, United Parcel Services brown trucks and uniforms, and Owens-Cornings pink insulation. Winning a trademark for color has proven to be more difficult in the fashion industry, where color is a fundamental part of almost any design. That principle became the foundation of YSLs argument. YSLs attorney countered by citing a judges ruling in a similar case that said, Granting a producer the exclusive use of a basic element of design (shape, material, color, and so forth) impoverishes other designers palettes. YSL went on to argue that allowing Louboutin to claim a monopoly on the use of red on a part of the shoe would have an unprecedented, anti-competitive effect in limiting the design options available to all other designers. After hearing the parties arguments, Judge Victor Marrero, a district court judge in New York, ruled in favor of Yves Saint Laurent. Louboutins claim would cast a red cloud over the whole industry, cramping what other designers could do while allowing Louboutin to paint with a full palette, he wrote. Color constitutes a critical attribute of the goods. His ruling meant that Christian Louboutin could not claim trademark protection for its red-soled shoes. Attorneys for Christian Louboutin filed an appeal with the Second Circuit U.S. Court of Appeals with the intent of having the appeals court reverse the trial courts decision.

Lulumon Athletica Inc. v. Calvin Klein Inc. Lulumon, a maker of yoga apparel based in Vancouver, British Columbia, filed a complaint in a district court in Delaware, claiming that Calvin Klein Inc. (CKI) was selling yoga pants that infringed on three of the companys design patents, including one that included a distinctive waistband made of three overlapping panels of fabric that the company received in 2011. Unlike a utility patent, a design patent protects an items nonfunctional, ornamental features. To receive a design patent, a product must include the following five elements:

1. The item must be an article of manufacture.
2. The design must be original.
3. The design must be novel.
4. The design must be non-obvious.
5. The design must be ornamental.

With its three overlapping pieces of Lulumons trademarked Luon compression fabric, the waistband on the companys Astro yoga pants, which retail for $98, is designed to make the waist look slimmer and, because they can be rolled down to sit lower on the waist, enhance the wearers athletic performance. Lulumon claimed that the waistband on CKIs yoga pants, which sell for as little as $20, is substantially similar to the waistband on its Astro yoga pants. According to a decision in 2008 by the U.S. Court of Appeals for the Federal Circuit, owners of design patents must prove that to the average observer the alleged infringers design appears to be substantially the same as its own design (known as the ordinary observer test).

Questions:

2a.What does a trademark protect? What does a patent protect? What is a design patent? (5 Marks)

2b. Assume the role of a judge in these two cases. How would you rule? Explain your reasoning. (In the Lulumon Athletica v. Calvin Klein case, you may want to search online for images of the two companies yoga pants and apply the ordinary observer test before making your decision.) (5 Marks)