Yesterday the European Court of Justice (ECJ) gave its judgment on the question of whether the Louboutin trade mark for its red sole could be invalidated because it consisted exclusively of the shape of the sole and was not a colour mark.
The ECJ, in a rare move, ruled against the previous Opinion of the Advocate General, Maciej Szpunar, who had held that the Louboutin trade mark was a shape mark and therefore liable to be invalidated.
Whilst the full judgment is not yet available, the press release from the ECJ confirms that 'where the registration of the mark did not seek to protect that shape [the sole of the shoe] but sought solely to protect the application of a colour .' it cannot be held that the mark consists exclusively of that shape.
For the moment, the final decision is with the Dutch court in The Hague that referred the question to the ECJ. However, it looks highly likely that Louboutin's trade mark red sole will retain its cache to be included in future television series like Sex and the City and Breaking Bad!
Further detail will be provided once the full judgment is published.