Colour trends in the fashion industry are decided based on the season, latest trends, or what the consumers would choose to express him or herself. A colour trend cycle starts with the designer introducing it which is then accepted in the marketplace. The colour trends until the marketplace are saturated with it and then it moves on to the next colour cycle. Many brands try to monopolize and want exclusive rights over a particular colour which is associated with their brand. The protectability of colour in the fashion industry is a point of debate for many years, particularly in the wake of Louboutin’s Red Sole Case.

In the fashion industry, consumers buy a product based on the latest trends and styles and how aesthetically the colour appeals to the consumer. A monopoly of a particular colour could pose a genuine threat of colour depletion in the fashion industry and put other designers at a disadvantage. Further for a colour to be identified with a particular brand it must be used consistently through all seasons. But colours in the fashion industry are used according to the season such as earth tones for autumn, floral, and pastels for the spring, and white or lighter shades for the summer. If the designer uses colour according to the season, no monopoly can be granted to the colours due to a lack of acquired distinctiveness. Only limited colours can withstand all the changing trends and seasons in the fashion industry. Monopoly over these colours would put other designers at a competitive disadvantage and will deter other designers from entering the market as they will not be able to use the colours appealing to the consumers. Thus, considering that there are limited colours, a monopoly over a single colour is the main point of debate as it would result in a loss of creativity.

Conversely, many designers argue that monopoly over a particular colour only stops other designers from using the same colour in the same manner. For instance, in Louboutin’s case, his monopoly over the red colour sole only prevents other designers from using a deceptively similar red colour for the sole of the shoes. Competitors can use a different colour in a similar or different manner. But, for a colour mark to obtain trademark protection, it must prove that it has acquired a secondary meaning through long use. Owing to the short life of trends and style, it becomes difficult for colour to be protected under the pretext of acquired distinctiveness. Further, in earlier days fewer colours were available and therefore the available colours remained long in the market, forming a deep symbolic association with a particular product. But with a myriad of colours available now, association with colours have become weak.

Using colour mark adds distinctiveness to designs and limit other designers from copying or selling their goods on other’s goodwill. While competitors may argue that colour should not be granted protection due to limited colours appealing in all seasons, in some cases the colour depletion theory does not apply due to a myriad of colours coming up. Further, the colour depletion theory is less likely an argument because of the ever-changing colour trends. A colour is protected only when it is consistently used by the designer in all seasons and is identified with the brand satisfying the condition of acquired secondary meaning and association with the designer.