Christian Louboutin has been fighting his case in Europe recently to ensure that no other designer can use his red sole idea. Louboutin is trying to prevent Van Haren – a high street chain – from selling their version of his distinctive shoes, which have been a celebrity and wealthy persons footwear choice for years.
However, this week, a court advisor claimed that he may not be entitled to be the sole trademark owner and, thus, not be able to prevent others from selling a similar sole. The Advocate General at the European Court of Justice (ECJ) suggested that the trademark protection on the red soles – dating from 2010 to 2013 – might actually be invalid. Although not an official decision, judges often follow advice from advocate generals, which has people questioning the future of the Louboutin brand.
Maciej Szpunar – the aforementioned advisor – claimed that the red color alone could not be considered, but when worked alongside the shape of the sole it might have a case. However, shapes are not usually protected under EU trademark law, hence why Louboutin’s case may be deemed invalid. Szpunar said his analysis focused exclusively on the issue of the shape of soles and not on the value of the branding of the shoes – he took “no account of (the) attractiveness of the goods flowing from the reputation of the mark or its proprietor”.
“A trademark combining color and shape may be refused or declared invalid on the grounds set out under EU trademark law,” the ECJ said in a statement, outlining Maciej Szpunar’s advice to the judges hearing the case, which was referred by a Dutch court. Szpunar “expresses doubts as to whether the color red can perform the essential function of a trademark, that of identifying its proprietor, when that color is used out of context, that is to say, separately from the shape of a sole,” the ECJ said.
Once the ECJ reaches its verdict, it will be up to the Dutch court that referred the case to take the final decision on whether Louboutin’s red sole can be a trademark.
However, in an update just a couple of days after the story was released, Christian Louboutin spoke out claiming the story is fake news. While brands tend to keep quiet during high profile court cases like this pan out, Louboutin issued a statement suggesting the story was untrue:
“While ordinarily Christian Louboutin does not comment directly on pending matters, we are making an exception in this instance to correct what appears to be misleading reports of the opinion of M. Szpunar, advocate general, which is seen to impact our trademark adversely. We disagree,” the brand said.