Louboutin Runs Into Skeptical EU Court in Red Sole Trademark Bid

Shoe designer Christian Louboutin, poses at his shop in Motcomb Street, London, Thursday, March 17, 2005. Photographer: Eleanor Bentall/Bloomberg News.

Fashion designer Christian Louboutin’s attempt to register his iconic red soles as a trademark for high-heeled shoes may run afoul of European Union restrictions on registering some shapes, an adviser to the EU’s highest court said today.

A Court of Justice of the European Union advocate general pointed to a EU prohibition against trademark registrations for shapes that give “substantial value” to the goods, which comes from Article 3(1)(e)(iii) of the directive on trademarks. That prohibition could apply to Louboutin’s registration, which consists of the shape of a high-heeled shoe’s sole in a particular color, Advocate General Maciej Szpunar said.

The EU case came from the Dutch court handling the trademark dispute between Louboutin and retailer Van Haren Schoenen BV, which was selling high-heeled shoes with red soles. The Dutch court referred the case to the CJEU to give the proper interpretation of EU law.

Whether the Louboutin registration is prohibited is fact-specific, so it will be for the Dutch court to decide, Szpunar said.

Szpunar issued an earlier advisory opinion in the dispute in June 2017, but before the CJEU made a decision, it reassigned the case to a larger panel of judges and reopened oral arguments. He came to largely the same conclusion in the new opinion, which addresses some new points raised during the second round of oral arguments.

Advocate general opinions have influence on final CJEU rulings, with some studies showing that the two arrive at the same conclusion about 80 percent of the time.

Louboutin v. Van Haren Schoenen BV, E.C.J., Case C‑163/16, advocate general opinion 2/6/18