“Never Surrender High-Top” - Trademark Dispute in the Making?
The “Never Surrender High-Top’’ is the name given to the limited edition line of trainers that have been released (and already sold out) by Donald Trump.
On February 17, Trump publicly announced the release of the High-Tops in Philadelphia at Sneakercon. This came just after a New York Judge ordered him to pay a $354.9 million fine for fraudulently overstating his net worth by as much as $3.6 billion to dupe lenders into giving him better borrowing terms.
Although Trump is closer to becoming the Republican presidential nominee in a rematch with Biden after managing to win over Iowa, New Hampshire and Nevada, his website claims the release of these trainers have zero political motivation or associations. However, these claims are arguably dubious when considering how his campaign officials promoted the product and the timing.
The most pressing issue which this article will examine is the design of the shoe itself. It has a gold body adorned in stars and stripes on the ankles with the letter “T’’ on the sides, as well as red soles. These red soles could spark a potential lawsuit for Donald Trump due to the association of red soles with the luxury shoe brand Christian Louboutin.
Christian Louboutin has used the design of red soles since 1992 and, in 2008, registration was issued by the US Patent and Trademark Office for red sole use on women’s high fashion designer footwear. This established that a single colour can be a trademark if it takes on a secondary meaning, essentially becoming a logo of its own. Indeed, that can be said for the Louboutin brand as many colloquially refer to the shoes as ‘’red bottoms’’. Since then, Christian Louboutin has won a number of trademark disputes globally over the use of a red lacquered sole including against a fellow luxury brand, Yves Saint Laurent, wherein their trademark was deemed valid. However, since the YSL shoe was red all over it was deemed that there had to be a contrast between the body and the sole of the shoe.
Much of the problem with this lies in the political context and potential ramifications as Trump’s use of red soles may erroneously cause customers to believe there is an association between Christian Louboutin with MAGA and Trump, meaning Trump may profit from the brand’s reputation for luxury. This is evidenced by the fact that his limited edition line of only 1,000 trainers selling at $399 sold out.
On the other hand, Loubutin may lose customers due to Trump’s infamy for telling falsehoods and offending marginalised groups, otherwise known as reputation dilution. But, hypothetically, if Christian Louboutin were to avoid political backlash by not taking legal action in order to stay apolitical to keep consumers on both sides of the political spectrum, they run the risk of giving their competitors an excuse to undermine their trademark in the future by pointing out how they never took action against Trump.
Typically Louboutin would have sent a cease and desist letter following Trump’s announcement at Sneakercon but their usually strong brand protection strategy is being hindered by the business consequences of aligning with a political belief causing delay.
Trump is no stranger to intellectual property disputes. threatened with legal action by high profile artists like the Rolling Stone for unauthorised use of their music during the 2020 presidential campaign. As such, it is safe to say that he would be prepared for a lawsuit and may try to argue that he is not in the same market and not a competitor as Louboutin’s trademark only applies to women’s footwear. But this argument may fall flat considering his trainers include both men and women’s sizes.
The most interesting issue at play is the fact that, in the FAQ section of the website, it is noted that “the images shown are for illustration purposes only and may not be an exact representation of the product”. This may indicate that customers may not even receive trainers with red soles as pictured, highly protecting Trump from a lawsuit especially regarding the social media “buzz” surrounding his use of red soles. This also suggests that a lawyer was involved in the creation of the shoe and an awareness of the stir it might cause.
While it is unlikely that any legal action Christian Louboutin decides to take against Trump will negatively impact his reputation and run for presidency in the eyes of his loyal supporters. Having just recently paid a hefty fine and soon facing four federal criminal charges, the question emerges: can Trump actually afford to take on another lawsuit?
By Alexia Kieya
