Somewhere Joan Rivers and the rest of the fashion police are aghast. Louboutin SA has turned to the 2nd Circuit to stop Yves Saint Laurent America (YSL) from selling red-soled shoes, which the designer claims violates its trademark.

Christian Louboutin’s company feels as if it took a stiletto heel to the throat after U.S. District Court Judge Victor Marrero rejected its claim that YSL’s shoes are identical to its own in August 2011. Louboutin also asserted that YSL’s red-soled shoes “threaten to mislead the public.” According to the suit, the U.S. Patent and Trademark Office awarded Louboutin a trademark for the iconic red soles in 2008.

In a Walt Whitman-inspired response, Marrero concluded that Louboutin had not established a likelihood that it will succeed on its claims that YSL infringed the “Red Sole Mark” to warrant the relief that it seeks.

“Because in the fashion industry color serves ornamental and aesthetic functions vital to robust competition, the Court finds that Louboutin is unlikely to be able to prove that its red outsole brand is entitled to trademark protection, even if it has gained enough public recognition in the market to have acquired secondary meaning,” Marrero wrote.

Before the appeals court judges yesterday, Louboutin’s lawyers clarified its claim.

“We don’t claim shades of red,” Louboutin lawyer Harley Lewin said, according to a Bloomberg report. “We don’t claim anything but the mark as registered.”

YSL, however, claims it began selling shoes with red soles “long before” Louboutin began selling them in 1992.

“Our concern is, as a fashion house making monochromatic shoes, we should be able to continue doing that,” YSL lawyer David Bernstein said in court yesterday, according to the report.

The three-judge panel said it would rule on the case at a later date.