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Louboutin wins legal battle over red sole trademark

Christian Louboutin has won a key legal battle in the European Courts over the trademark of its red soled shoes.

The lengthy battle began in 2012, when Christian Louboutin began proceedings against Dutch shoe retailer Van Haren, after it included high-heeled shoes with red soles in its Fifth Avenue by Halle Berry footwear line.

Christian Louboutin had registered trademarks in Belgium, the Netherlands and Luxembourg, covering ‘footwear’ in 2010 and ‘high-heeled shoes’ in 2013, where the colour red is applied to the sole of a shoe.

The District Court in The Hague consequently granted a temporary injunction against Van Haren, which appealed against the decision. In 2014, the case was referred to the European Court of Justice (ECJ).

However, Louboutin was dealt a blow to the case in February, after an advocate general ruled that a trademark combining colour and shape may be refused or declared invalid.

This latest high court ruling, by the Court of Justice of the European Union (CJEU), focused on whether the red soles of the shoes should consist exclusively of a “shape” in which case they weren’t entitled to trademark protection.

Elaine O’Hare, senior associate and IP specialist at Stevens & Bolton, said: “The question under consideration involved the technicalities of European trademark law but was, in essence, whether a trademark which consists of a colour applied to the sole of a high heeled shoe consists exclusively of a ‘shape’ and is therefore unprotectable as a registered mark.”

Van Haren’s argument was it did and so Louboutin did not have trademark protection.

However, despite previous rulings, the CJEU has now ruled in favour of Louboutin, clarifying that shape trademarks do not apply to the red soles of Louboutin shoes.

Rebecca Halford- Harrison, IP, technology and disputes lawyer at Keystone Law, said: “The value isn’t in the colour as attached to the shape of the goods, but in the restricted location of the colour. No doubt the next question for lawyers will be, if someone puts green or blue or another colour soles on their high heeled shoes, can Louboutin say it’s too similar to their own mark – can Louboutin stop them?”

Louboutin has said in a statement: “For 26 years, the red sole has enabled the public to attribute the origin of the shoe to its creator, Christian Louboutin.

“This case will now be referred back to The Hague Court which is expected to confirm the validity of the red sole trademark.”

Commenting on today’s ruling, Sanjay Kapur, partner and trade mark attorney at intellectual property firm, Potter Clarkson LLP, added: “Today’s ruling is unusual in that it did not follow the earlier opinion by the Court’s advocate general but will undoubtedly be welcome news for Louboutin, who should be able to exert its EU trademark rights against copy-cat products and maintain the cachet and appeal of its shoes.

“Losing this case could have resulted in a multitude of similar red sole coloured products flooding the EU market, which could have caused irreparable damage to the prestige brand’s goodwill and dilution of its trademark rights.”

Readers' comments (1)

  • This is a great victory for Louboutin and common sense has prevailed. The red sole clearly has brand value and should be protected. This is good news also for other fashion brands who wish to protect distinctive colours when applied to fashion items. It is also possible to protect shapes and colours as registered designs provided they are registered within a year of first marketing. The costs of protection are not high and registration normally only takes a few days.

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