A press release issued yesterday by the Court of Justice of the European Union (CJEU) on the Advocate General’s Opinion in Case C-163/16 Christian Louboutin, Christian Louboutin SAS v Van Haren Schoenen BV, saw Advocate General Szpunar, identify that, “a trade mark combining colour and shape may be refused or declared invalid on the grounds set out under EU trade mark law. The analysis must relate exclusively to the intrinsic value of the shape and take no account of attractiveness of the goods flowing from the reputation of the mark or its proprietor,” (source Curia.europa.eu).

Commenting on this high-profile case, and assuming that the CJEU follow the Advocate General’s position, Sanjay Kapur, Partner in our Trade Marks team explained, “Whilst relevant consumers may instantly recognise a red sole shoe being uniquely associated with Louboutin, trying to persuade the courts to grant monopoly rights with such a ‘badge of origin’ may well be an insurmountable hurdle,”

“This could mean that Louboutin would not be able to stop its competitors, including haute couture fashion houses, from offering shoes with red soles. The red sole could therefore become ubiquitous, which would seriously reduce the cache associated with the Louboutin brand.”

This high-profile case has certainly attracted the attention of the world’s media, demonstrated in the large variety of leading titles running Sanjay comments. Sanjay has been quoted in Reuters, The Guardian and The New York Times, amongst other publications. The relevant links are below: