At the center of the legal argument is whether or not “shape” includes color. If it does, Christian Louboutin well known red sole trademark can be ruled invalid.
The French designer, Louboutin, is currently in a court battle in the Netherlands to stop the Dutch chain, Van Haren, from selling copycat cat versions of his shoes. The case dates back to 2012 when Van Haren introduced a new line which included high-heeled shoes with red soles.
Louboutin argued that the shoes infringed his brand’s trademark. The District Court in The Hague agreed and ordered Van Haren to stop producing its black and blue shoes with red soles. But Van Haren appealed against that decision and in 2014 the case was referred to the ECJ for “clarification”.
Last week the Court’s advocate general, Maciej Szpunar, said that the color red could not be considered apart from the shape of the sole, with shapes not usually protected under EU trade mark law. Such an opinion is likely to be highly influential on judges’ decision, which has yet to be made.