This week the highest European Union court, dealt a blow to Christian Louboutin in the ongoing case about trademarking the famous red sole.
This has spun off the lawsuit filed in 2012 against Van Haren, a Dutch company whose retail outlets were selling affordably priced high-heeled women’s shoes with red soles. Louboutin’s lawyers claimed that the shoes sold by Van Haren, part of its Fifth Avenue by Halle Berry line, infringed on his brand’s trademark for footwear. Van Haren had to temporarily stop making and selling the line of shoes, but the company’s lawyers fought back and the case eventually made its way to the European Court of Justice.
Maciej Szpunar, the advocate general for the court, stated that Louboutin’s red soles were not a separate entity from the shape of his high-heeled shoes, and shapes typically cannot be trademarked under EU law.
If the court follows the advocate general’s opinion, which it normally does, in effect Louboutin’s red soles could be refused trademark protection, sending the case back to Dutch courts to consider.
The case highlights one of the most difficult questions in fashion: In a world where designers often have distinct styles, and attract admirers based on those styles, what can, and cannot, be trademarked?