WIPR survey: Louboutin should be allowed to trademark red soles

An attorney general (AG) made the right decision when he  recommended that Christian Louboutin should be able to register red soles as an EU trademark, according to WIPR readers.

In a survey, 71% said Maciej Szpunar made the right call.

In 2013, Dutch firm Van Haren was ordered by the Dutch District Court of the Hague to stop manufacturing high-heeled shoes with red soles, as the shoes would have infringed Louboutin’s trademark.

Maciej Szpunar handed down his opinion to the Court of Justice of the European Union, as part of the preliminary assessment of the case, on June 22.

“I consider that it is necessary to take into account the colour as well as the other aspects of the goods in question,” he said in his opinion.

One reader, who agreed that Szpunar made the right call, stated that Louboutin has made red soles “distinctively their design”, adding it is unusual enough that it would not be “mimicked by others unless they were trying to look like Louboutin”.

Another added that every “consumer of luxury brand women’s shoes identify the red sole as a source indicator of Louboutin”, so therefore the correct decision was made.

Szpunar quoted article 3(1) (e) (iii) of the European parliament directive which states that a trademark shall not be registered or, if registered, shall be liable to be declared invalid for signs that exist exclusively of the shape which gives substantial value to the goods.

He said it is “to be interpreted as being capable of applying to a sign consisting of the shape of a product and seeking protection for a certain colour”, as part of his final recommendation to the court.

However some readers disagreed with the AG.

“No matter the extent of use made by one trader of such sign, this should not be able to alienate the right of designers and manufacturers of shoes to use a primary colour in designing shoes,” said one reader.

Another stated that they “vehemently dispute” the findings, as there “should exist some elements of creativity before one is considered to be granted a monopoly over an IP asset so newly created”.

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