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" ... OH: Ordinarily, one of the key requirements for a trademark is that it must be inherently distinctive. Otherwise, the mark would fail of its essential purpose of identifying the source or origin of goods or services. However, if a mark is not inherently distinctive, it can become protectable through the development of a so-called secondary meaning. Secondary meaning is a legal doctrine of trademark law that provides protection for an otherwise unprotectablemark when it develops some meaning to the public as the source of goods or services through advertising or other exposure. In this case, Louboutin has a very strong argument that his red outsoles have developed secondary meaning. Many people would be able to identify a Louboutin shoe from a distance (and many fans would likely be willing to testify on his behalf). The problem is red outsoles serve other non-trademark functional purposes. So the courts have to balance Louboutin’s desire for protection of his red outsoles against the impact on competition in the fashion industry if every other designer is prohibited from using red outsoles--even innocently for their non-trademark functional purposes. And then, what about a designer introducing yellow soles? Green soles? And so forth. ... "