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CJEU shapes up nicely for Louboutin red sole trade mark

13 June 2018

The Court of Justice of the European Union (CJEU) has today given its judgment in relation to a key issue in one of the most hotly debated trade mark disputes in recent times. Should Louboutin’s iconic red soled high heels be afforded trade mark protection?

Luxury shoe designer Christian Louboutin sued Van Haren for infringement of its registered trade mark for the colour red (Pantone 18-1663TP) applied to the sole of a high heeled shoe. One of the challenges to the validity of the trade mark had to do with whether the mark consisted exclusively of a shape which gives substantial value to the goods. We reported on the opinion of the Advocate General back in February, and that review provided the context to this question. The Advocate General may have given Louboutin some cause for concern.

The CJEU has now given its judgment on this issue, in favour of Louboutin. It found that the particular colour red as applied to the soles of high heeled shoes does not consist 'exclusively' of a shape (rather, it protects the colour, as applied to a specific part of a product) and so the trade mark did not fall foul of article 3(1)(e)(iii) of Directive 2008/95.

Louboutin has naturally welcomed this decision, as it takes the brand a step closer towards successful enforcement of its trade mark. The case now returns to the referring Dutch court for final judgment.

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