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A Study In Red – The Importance Of Louboutin Shoes For European Trademark Law

On 12 June 2018, Christian Louboutin’s won a key legal battle in the war over the trademark of his red soled shoes when the European Court of Justice (ECJ) stated that their red colour was separate from the shape of the soles.

For a bit of background, Paris-based Christian Louboutin has marketed the red-bottomed shoes for more than a quarter of a century, and they featured even on the television series “Sex and the City.” Louboutin had registered trademarks in Belgium, the Netherlands and Luxembourg, covering footwear and high-heeled shoes, where the colour red is applied to the sole of a shoe.


Louboutin vs. Copycats

Previously, in 2011 Louboutin sued Yves Saint Laurent for trademark infringement after YSL released a line of high heels that included a red shoe with a red sole. The case was ultimately dismissed.

In 2012 he went to court in the Netherlands to prevent the Dutch high street chain, Van Haren, from selling its own versions of red-soled high-heeled shoes, a favourite on celebrity red carpets. The lengthy legal dispute centred on whether Louboutin’s trademark involved a shape or a colour under European Union law.

The Dutch company argued that European regulations say shapes by themselves cannot be registered as trademarks. However, Louboutin argued that the use of a colour, in this case a red pigment called Pantone 18 1663TP, can be trademarked. Also, Louboutin said that the shape of his shoes is a way of showing where the colour is located on the bottom of the shoe.


The Curious Case of Red Soles

The District Court in The Hague granted a preliminary injunction against Van Haren, and in 2014, the case was referred to the European Court of Justice. However, Louboutin’s case was dealt a blow in February. The advocate general ruled that a trademark combining colour and shape may be refused or declared invalid.

Despite previous rulings, the CJEU decided not to follow the advice of the advocate general and has now ruled in favour of Louboutin, clarifying that shape trademarks do not apply to the red soles of Louboutin shoes.

“The mark does not relate to a specific shape of sole for high-heeled shoes since the description of that mark explicitly states that the contour of the shoe does not form part of the mark and is intended purely to show the positioning of the red colour covered by the registration,” the ECJ said in a statement.

A trademark, such as Louboutin’s, could not be regarded as consisting exclusively of a shape, since the main element is a specific colour – which is designated by an internationally recognized identification code.


How This Will Affect the (Fashion) Industry or What Would Prada Do?

And while this event might mark only one victory in his years-long campaign against a Dutch fashion company, its implications in the field of Intellectual property law are more interesting. In terms of sanctions, these might include both fines and maybe even jail time – and these might vary from jurisdiction to jurisdiction.

However, perhaps more interesting are the possible implications for the fashion industry. Consider Prada and their recognisable red stripe across the sole. Are we to expect a lawsuit from Prada’s lawyers? Will Converse trademark the white tops on their sneakers?