This section contains the nature of the case and procedural background.

P, a designer of high-fashion women's footwear and accessories, has since 1992 painted the 'outsoles' of his women's high-heeled shoes with a high-gloss red lacquer. In 2008, P registered the red lacquered outsole as a trademark with the PTO. It was called the Red Sole Mark. D began selling monochrome shoes where each upper sole, outsole, and heel were all the same color. D make shoes in purple, yellow, green, and red. P sued D for trademark infringement. P moved for a preliminary injunction. D counterclaimed in that the mark was invalid because it was ornamental or functional. The court denied P’s injunction reasoning that protection could not be given to a single color in the fashion industry. P appealed. P argues that the District Court erred in (1) holding, based on the doctrine of 'aesthetic functionality,' that the Red Sole Mark was not entitled to legal protection; (2) applying the doctrine of aesthetic functionality to hold that a single color on a fashion item could not act as a trademark; (3) failing to give weight to the statutory presumption of validity deriving from the Red Sole Mark's registration; (4) applying an improper analysis of trademark infringement and dilution; (5) ignoring allegedly undisputed proof of likelihood of confusion and irreparable harm; and (6) announcing a per se rule of functionality in a manner that violated Federal Rule of Civil Procedure 52.

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