Putting The Foot Down – Could Christian Louboutin Red Soles Trademark Be Invalid?

Author:Mr Robin Hayes
Profession:Whitney Moore
 
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On 6 February 2018, Advocate General Szpunar (AG) delivered his second opinion on Christian Louboutin's shoes trademark. His analysis notes that a trademark combining colour and shape may be refused or declared invalid on the grounds that the trademark at issue gives substantial value to the goods.

By way of background, Christian Louboutin registered trademarks for footwear which were described as the colour red applied to the sole of a shoe as shown (the contour of the shoe is not part of the trade mark but is intended to show the positioning of the mark) in 2010 and 2013.  Louboutin subsequently brought trademark infringement proceedings in the Netherlands against Van Haren for selling high heels with red soles. The issue was referred by the District Court of the Netherlands to the Court of Justice of the European Union (CJEU) following Van Haren's counterclaim that the trademark was invalid. The referring Netherlands court stated that the mark at issue was indistinguishably linked to shoe soles and covered the three-dimensional properties of goods (contours, measurements and volume) and colours also.

In his most recent Opinion, the AG sustained his view that the trademark directive (Directive 2008/95) can be applied to a sign combining colour and shape, and such a trademark may be refused or declared invalid on the grounds established under EU trademark law.  The...

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