INTELLECTUAL PROPERTY IN CLOTHING AND FASHION BRANDS footwear. The second circuit assessed the case by analyzing the doctrines of aesthetic functionality and acquired distinctiveness asking the following question: Does the red sole mark merit protection as a distinctive mark? After considering a number of factors, the court concluded that by placing the color red in a context that seems unusual, and deliberately tying that color to the product, Louboutin had created an identifying mark fi rmly associated with his brand and was therefore a distinctive symbol that qualifi ed for trademark protection. The court further held, however, that the secondary meaning of the red sole mark extended only to the use of a lacquered red outsole that contrasts with the adjoining portion of the shoe. Therefore, though the red sole mark qualifi ed for trade-mark protection, YSL’s use of a red sole on a monochromatic red shoe did not constitute trademark infringement. Copyright law also offers designers another form of protection. In the U.S., a fashion designer can register prints that are displayed on fabric used in their designs but in most circumstances will not be able to register the actual design of the garment. In 2017, the U.S. Supreme Court affi rmed a Sixth Circuit decision that considered copyright protection involving graphics on a cheerlead-ing uniform in Star Athletica, L.L.C. v. Varsity Brands, Inc. 5 The plaintiff, Varsity Brands, is a leading retailer of cheerleading uniforms and regis-tered copyrights for multiple graphic designs that appear on their cheerleading uniforms. Defendant Star Athletica also sells cheerlead-ing uniforms bearing graphic designs that, according to Varsity, are substantially similar to the designs for which Varsity held valid copyrights. Star argued that Varsity’s copy-rights were invalid because the designs at issue were unprotectable designs of useful articles. The district court agreed. Varsity appealed. The question before the Sixth Circuit was whether the “pictorial, graphic, or sculptural features” that are incorporated into the design of a “useful article,” a cheerleader uniform, can be identifi ed separately from, and are capable of existing independently of, the utilitarian aspects of the article. In order to prevail, Varsity had to demonstrate (1) that it owned a valid copyright in the designs, and (2) that Star copied the protectable elements of the work. In regard to the fi rst question, the court found that Varsity had successfully www.vsb.org registered with the U.S. Copyright Offi ce each of the fi ve designs that Varsity alleged Star in-fringed. Registering with the Copyright Offi ce gives the registrant a rebuttable presumption of validity, and the Sixth Circuit found that the district court had erred by failing to give greater deference to the Copyright Offi ce’s registration determinations. Thus, the court held that Varsity successfully demonstrated the fi rst factor — that it owned a valid copy-right in the designs. Secondly, in order to prevail, Varsity had to demonstrate that Star copied the protect-able elements of the uniform’s designs. A cheerleader uniform is a useful article, pos-sessing both useful functions and expressive features. When it comes to useful articles, only the expressive pictorial, graphic, or sculptural features that can be identifi ed separately from, and are capable of existing independently of, the utilitarian aspects of the article can be protected. Star asserted that the pictorial, graphic, or sculptural features of Varsity’s uniforms are inextricably intertwined with the utilitarian aspects of the cheerleading uni-form because they serve a decorative function to the useful article. The court rejected this ar-gument, reasoning that such a holding would render “all fabric designs, which serve no other function than to make a garment more attractive, ineligible for copyright protection.” Because the court concluded that the graphic features of Varsity’s designs could be identi-fi ed separately from, and are capable of exist-ing independently of, the utilitarian aspects of the cheerleading uniforms, it held that Varsity’s uniform designs were copyrightable pictorial, graphic, or sculptural works. Star Athletica appealed to the U.S. Supreme court. In a vote of 6–2, the United States Supreme Court affi rmed the Sixth Circuit’s decision on March 22, 2017. Another area of law often cited in fashion law disputes is trade and commercial secrets regarding confi dentiality, non-compete and non-disclosure agreements signed by employ-ees. In Nike, Inc v Denis Dekovic, Marc Dolce, and Mark Miner , 6 Nike sued three former employees, employed as shoe designers, for at least $10 million in damages. Nike’s complaint alleged that the designers misappropriated Nike’s trade secrets and conspired with Adidas to start a new, competing business venture. In the complaint, Nike alleged that defendants knowingly violated several agreements signed with Nike at the outset of their employment. INTELLECTUAL PROPERTY LAW | Vol. 67 | April 2019 | VIRGINIA LAWYER 35