The Battle for the Red Sole: Louboutin’s Signature Trademark Under Threat in the EU - Fordham Intellectual Property, Media & Entertainment Law Journal
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The Battle for the Red Sole: Louboutin’s Signature Trademark Under Threat in the EU

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

  1. Alice Newbold, Could Christian Louboutin’s Red Sole Trademark Be Invalid?, Vogue (Feb. 7, 2018), [].

  2. Elizabeth Paton, Can Christian Louboutin Trademark Red Soles? An E.U. Court Says No, N.Y. Times (Feb. 6, 2018), [].

  3. Id.

  4. Id.

  5. Id.

  6. Louboutin Puts Foot Down Over ‘Misleading’ Red-Sole Reports, World Intell. Prop. Rev. (Feb. 12, 2018), [].

  7. Paton, supra note 2.

  8. Id.

  9. Id.

  10. Rob Watts, Louboutin Faces Setback in EU Legal Battle Over Red Soles, BBC News (Feb. 6, 2018), [].

  11. Id.

  12. Paton, supra note 2.

  13. Id.

  14. World Intell. Prop. Rev., supra note 6.

  15. Id.

  16. Id.

Lindsey Eckert

Lindsey is a second-year student at Fordham University School of Law and a staff member of the Intellectual Property, Media & Entertainment Law Journal. She holds a B.S. from The Ohio State University.