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By Beth Gale, Solicitor

Christian Louboutin used his assistant’s red nail varnish to paint the sole of a pair of shoes in 1992 and from this developed a world famous brand which is somewhat of a phenomenon.

As Louboutin’s shoes became increasingly popular, and instantly recognisable, many high street stores across the globe started to copy the design.

Louboutin needed to do something to protect his brand – if he could not prevent others from selling shoes with red soles his brand and image would be damaged, he would no longer be able to rely on his signature sole.

Louboutin registered the red soles (Pantone 18-1663TP, to be precise) as a trademark in 2010 and specifically for high heels in 2013.

The use of colour in a trademark in the fashion industry is not uncommon, for example Levi’s jeans are instantly recognised by their red tab.

Louboutin took unauthorised use of his trademarked red sole extremely seriously. In 2012 Louboutin brought a case against the Dutch high street company Van Haren who had been selling similar, but much cheaper, red soled shoes. He also took action against the retailer, Zara, in France.

The same year Louboutin battled Yves Saint Laurent in a New York court over similar trademark issues, and won the US trademark as a result. The US courts required Louboutin to demonstrate that the colour had a secondary meaning and proof that the public associated the coloured sole with the Louboutin brand – it had a ‘source-identifying’ function.

The question in the Dutch court was whether the trademark should be the shape or the colour of the sole of the shoe.

Throughout the case the Dutch company argued that EU law prohibits the trademark of products which are common shapes such as the sole of a shoe.

At a previous hearing it was decided that the combination of a colour and shape could not be afforded trademark protection and in February an Advocate General, Macjej Szpunar, expressed doubt as to whether the red colour could perform the essential function of a trademark.

The reason behind this initial opinion was that the red soles were not separate from the shape of the high heeled shoe and shapes cannot usually be trademarked under European law.

The purpose of a trademark is to identify the brand instantly and it was considered that this would not be possible if the colour was used out of context, for example separately from the shape of a sole.

The Dutch court referred the matter to the ECJ to determine whether the prohibition on the registration of shapes as trademarks also applied to shapes combining three-dimensional properties of a product and other characteristics such as colours.

It was noted in the ECJ ruling that Louboutin was not seeking to protect the shape of the shoe but the application of a colour to a specific part of it. The shape of the shoes merely identified the positioning of the colour.

On 12 June 2018 The European Court of Justice ruled, in contradiction with the advice of the Advocate General, that the Dutch company had infringed the Louboutin trademark by selling shoes with red soles.

This was unexpected as it is unusual for the court not to follow the advice of the Advocate General, but was very much welcome news to Christian Louboutin. If Louboutin had been unsuccessful in this case it is likely that the flood of imitation products would have caused irreparable damage to this niche brand.

The matter will now be referred back to the Dutch court which is expected to confirm that the red sole trademark is valid.

It is becoming increasingly common for brands in the fashion industry to seek to protect their designs through the courts. It is interesting to note that it is not just the well known fashion houses who take this initiative. Recently the designer behind Indian brand People Tree, Orijit Sen, complained that Dior had plagiarized his block print design of a man doing yoga poses from 2000.

It will be interesting to see how the courts adapt to protect brands which have moved away from traditional logos to make their products recognisable and distinctive.