The Battle for the Red Sole: Louboutin’s Signature Trademark Under Threat in the EU
Christian Louboutin is no stranger to legal battles over his signature red-soled shoes. Louboutin dealt with legal battles for his trademarked sole in the past, most notably against Yves Saint Laurent, which Louoboutin won in the United States.[1] However, in the European Union, Louboutin is now waging a war against the luxury brand Van Haren.[2] Louboutin originally filed the suit against Van Haren in 2012, claiming that Van Haren was infringing on Louboutin’s trademark, which, in Belgium, is a trademark for the shade of red identified as “Pantone 18 1663TP”.[3] Louboutin filed suit against Van Haren in 2012, claiming that Van Haren’s line of shoes for “Fifth Avenue by Halle Berry” infringed on this specific trademark.[4]
On Tuesday, February 6th, Maciej Szpunar, an advocate general, issued an opinion against Louboutin for the Court of Justice of the European Union.[5] Szpunar’s opinion stated that he had “doubts as to whether the colour red can perform the essential function of a trademark, that of identifying its proprietor, when that colour is used out of context, that is to say, separately from the shape of a sole.”[6] Essentially, Szpunar is doubtful that Louboutin’s signature color is a trademark alone, as the color is only recognizable and notable when on the sole of a shoe.[7]
However, this is not a final verdict for Louboutin or Van Haren.[8]. The case will be reconsidered by Dutch courts for a final judgment.[9] The Dutch court has authority to render its own decision and verdict, meaning that Szpunar’s decision is not necessarily binding on Louboutin or Van Haren.[10] The latest opinion from Szpunar will be a factor in the Dutch court’s decision, but it is possible that the verdict will swing the other way for Louboutin.[11] If the Dutch court follows Szpunar’s opinion, it could mean that Louboutin has no right to stop other companies in the European Union from selling red soled shoes.[12] This could cause massive problems for the brand, as other companies could begin to sell similar shoes to Louboutin’s for a fraction of the price.[13]
Louboutin claims that the reports issued regarding Szpunar’s decision are “misleading,” and that Louboutin may not be “adversely affected” by the opinion.[14] Louboutin claims that the red sole has value when placed on the sole of a shoe, as this is the identifying mark of the brand and Louboutin himself.[15] Although Louboutin claims that the opinion is in his favor, many legal experts agree that this is a serious blow to Louboutin and his brand.[16]
Footnotes
