Seeing red? Louboutin faces setback in Dutch trade mark court battle

A Christian Louboutin autographed shoe in Seattle

But an advocate general at the European Court of Justice advised the court that Louboutin's trademark protection on the shade of red used on his soles, dating from 2010 and 2013, might be invalid.

Louboutin started the legal action in 2012, when Van Haren brought out a range of shoes by actress Halle Berry which included high heeled shoes with red soles.

"Whilst relevant consumers may instantly recognise a red sole shoe being uniquely associated with Louboutin, trying to persuade the courts to grant monopoly rights with such a "badge of origin" may well be an insurmountable hurdle", said Sanjay Kapur, partner at intellectual property firm Potter Clarkson LLP.

French luxury shoe brand Louboutin, typified by its red soled footwear, has had a major setback in its lawsuit against Dutch shoe retailer Van Haren.

The classic red sole of a Christian Louboutin shoe was apparently invented when he painted his assistant's nail varnish on the sole.

The Court's advocate general, Maciej Szpunar, yesterday said that the color red could not be considered apart from the shape of the sole, with shapes not usually protected under European Union trade mark law.

Elaine O'Hare, senior associate at United Kingdom law firm Stevens & Bolton, told World Intellectual Property Review: "The brand will be seriously restricted in being able to protect the red sole as a "badge of origin", and there is a danger that the once-exclusive red soles will no longer be limited to Louboutin shoes". Such an opinion is likely to be highly influential on judges' decision, which has yet to be made.

Focusing his attention on the fact that Louboutin's mark combines color and shape, however, Szpunar said "the concept of a shape which "gives substantial value" to the goods, within the meaning of that provision, relates only to the intrinsic value of the shape, and does not permit the reputation of the mark or its proprietor to be taken into account".



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