In a long-awaited judgment and unexpectedly straightforward ruling, the European Court of Justice (ECJ) has backed the shoe designer Christian Louboutin in its battle to protect its distinctive red soled shoes. 

In 2012, Louboutin sued rival firm Van Haren in the Netherlands for selling high heeled shoes which had scarlet soles.  Van Haren’s response to the Court proceedings was that Louboutin cannot trademark common shapes of products such as the soles of shoes and therefore Louboutin’s famous red soled shoes did not have trademark protection.  Louboutin’s case was that the soles of their shoes were a position mark and therefore capable of trademark protection.

The ECJ agreed with Louboutin and held that the red colour applied on the sole of women’s high heel shoes is a position mark.  The ECJ’s decision came as surprise because the EU’s Advocate General had previously ruled that the red soles could not be protected as they relate to a shape and therefore did not fall within the remit of the EU’s trademark laws. 

The case will now be referred back to The Hague Court which will deliver a final ruling on the matter based on the ECJ’s decision.  It seems very likely that the decision of the Dutch Court will follow the ECJ’s judgment and this will allow Christian Louboutin to develop a monopoly for red-soled high-heeled shoes.  This may lead to other luxury brands to try and trademark other colours for shoes and other products. 

At Myerson, our expert Dispute Resolution team can advise on claims such as trademark infringement and other types of intellectual property claims such as breach of copyright, design rights and patents.  Our expert Corporate Commercial team can advise on non-contentious aspects of intellectual property, so you can consider how best to protect your rights.  If you would like to speak to one of our specialist IP solicitors, please contact us on 0161 941 4000 or email us at lawyers@myerson.co.uk.