Sweet Sole Music

Sweet Sole Music for Christian Louboutin from the European Court of Justice

In February 2018 we reported on the news that an EU Advocate-General had given an opinion which appeared to deal a severe blow to French designer Christian Louboutin's attempts to secure EU Trade Mark protection for his red high-heeled shoes ("Selling their soles" - 9/2/18). The A-G had concluded that the intrinsic value lay more in the shape of the soles (not capable of protection as an EU Trade Mark) than in the application of the red colour (Pantone 18 - Chinese Red) to them.

This week, however, in a somewhat surprising ruling (not least perhaps for M. Louboutin and those in dispute with him!) the European Court of Justice has made a contrary and decisive ruling, finding that the legal rules applying to "shape" trade marks are not applicable to this case, and that instead Louboutin's red soles are a "position" mark.

The Court's statement said; "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."

Christian Louboutin has of course welcomed this ruling, as have others in the fashion and luxury goods market throughout Europe, with some commentators speculating that it may lead to an increase in registrations for colours, colour combinations and patters as badges of origin from those markets in particular.

In the meantime, the ECJ's decision sends Christian Louboutin's case back to the Hague where the litigation originally began with a claim by Louboutin against Dutch high-street chain Van Haren. It is anticipated that the local court will now reach a decision which follows the rationale of the ECJ's recent ruling.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.