When in Doubt, Wear Red: Understanding Trademark Law's Functionality Doctrine and Its Application to Single-Color Trademarks in the Fashion Industry

08/18/the-newest-practice ("If the red sole is deemed functional rather than decorative, it can't function as a trademark. . . .So far, there is no cohesive test for whether an aesthetic feature is functional, so it's possible the Supreme Court will eventually take this case to rule on the issue.");see also Louboutin, 2012 WL 3832285, at *9 n.17 ("The doctrine of aesthetic functionality remains controversial in our sister circuits, which have applied the doctrine in varying ways (and some not at all).").