In Louboutin v. Van Haren, the Court of Justice of the European Union (CJEU) has made a preliminary ruling that a mark consisting of colour applied to a shape, such as the sole of a shoe, can be a trademark because it does not consist exclusively of a ‘shape’. This case concerns Christian Louboutin’s 2010 trademark registration for the colour red (Pantone 18‑1663TP) applied to the sole of a shoe as shown (the contour of the shoe is not part of the trade mark but is intended to show the positioning of the mark) (reproduced below).
In 2013, Louboutin brought infringement proceedings in the District Court, The Hague (District Court) against Van Haren for its sale of red soled ladies shoes. Van Haren alleged that Louboutin’s red sole trademark was invalid because it primarily consisted of a shape.
In a Reference from District Court, the CJEU was asked to interpret Article 3(1)(e)(iii) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008, which prohibits a mark that consists exclusively of a shape. The CJEU ruled that Louboutin’s red sole trademark is not a shape mark because it does not primarily consist of a shape, and thus, is not prohibited.
The main proceeding before the District Court will now resume.
The Judgement in Christian Louboutin et al. v. Van Haren Schoenen BV, C-163/16, is available here.
Summary By: Lauren Lodenquai
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