The attorney general at the European Union’s Court of Justice has written an advice saying that according to him, the Louboutin brand’s red shoe sole cannot be registered as a trademark.
Non-binding advice
The discussion has been going on since 2012, when Dutch shoe chain Van Haren also released its own shoe with a red sole. Louboutin pressed charges, stating its trademark had been breached. The case has now made it all the way up to the Court of Justice and it seems Van Haren will emerge triumphant. The attorney general’s advice may not be binding, it is usually followed.
At the case’s core is how the trademark legislation is interpreted. Van Haren says it only refers to design shape, not colour, while Louboutin vehemently states colour is also part of the trademark.
Because the judge was not sure whether trademark legislation also applied to colour, he asked the attorney general for advice. According to him, colour cannot be protected by trademark legislation, “if it prohibits competitors from selling items of the same functional nature”. The Court will rule on the matter in several months.
