WIPR survey: Readers split over AG’s Louboutin opinion
An advocate general’s (AG) opinion on the Christian Louboutin trademark dispute has been given the boot by nearly half of WIPR readers.
The matter centres on whether Louboutin’s signature style, consisting of the red-coloured sole of its shoes, should be a valid trademark.
WIPR reported that AG Maciej Szpunar issued his preliminary opinion in the Court of Justice of the European Union on Tuesday, February 6, when he expressed doubts about whether the colour red can be an identifier of a trademark when used out of context.
He added that grounds on which the registration of a trademark may be refused or declared invalid can be applied to a sign consisting of the combination of a shape and certain colour.
Since then, several lawyers have told WIPR that the opinion is unfavourable to the shoe designer, an interpretation which has been disputed by Louboutin: “A close reading of the full opinion of Szpunar in fact supports protection for our famous red sole, rather than threatening it,” a company release said.
Last week, we asked WIPR readers whether the AG’s opinion regarding colour and shape was the right call. It was a pretty tight split, with 52% backing Szpunar’s opinion and 48% opposing it.
Of the comments received from those backing the opinion, the reasons given centred on the view that Louboutin’s red sole feature is “overly broad” and “not descriptive enough” to be classed as a trademark.
An interesting response said “trademark law should not confer monopolies on features dictated by style and product”, which in this case would limit the colours and shapes available to all other brands in the shoe industry. Another reader agreed, saying “no one should be able to monopolise mere colours, especially in the fashion business, where such features are commonplace variations”.
One reader pointed out that Szpunar’s opinion indicates that the combination of shape and colour, if it departs significantly from the normal standard of goods in that sector, may be afforded trademark protection. However, a red sole on a high-heeled shoe does not depart significantly from similar products, such as “heeled shoes with blue, brown, or otherwise coloured soles”.
Other readers think the shoe is on the other foot, and the combination of shape and colour in such a way “results in a distinctive mark”. A recurring response was that where the shape and colour combination of a mark is synonymous with a brand, it should be capable of registration and protection.
Digging their heels in, one reader said: “If the colour and shape are clearly identifiable traits of a product then they should be permitted to be trademarked, like Christian Louboutin’s red soles.”
“Acquired distinctiveness through use, that is what I think should be assessed,” said another reader. They added that the red sole may add value to the shoes, but regardless, it meets the function and requirements of a trademark.
The CJEU has yet to issue a final decision regarding Louboutin’s trademark in the case, the result of which will be closely watched by those seeking to dip their toes into the realm of fashion trademarks.
For this week’s question, we ask: According to a report, the US’s performance in patent protection has weakened for the third consecutive year. Is this also your perception?
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