High Heels are Pleasure With Pain

Skärmavbild 2015-08-07 kl. 15.08.54

Skärmavbild 2015-09-08 kl. 22.09.07

LOCATION: LUXEMBOURG

A case about appeals, red soles and trademarks

As the title may revealed – this post is about shoes. Christian Louboutin is the french luxury shoe designer who have attached the brand on the world fashion map through his high- heeled shoes with contrasting soles in a certain color of clear red.

Christian Louboutin has a valid US trademark concerning the red soles of the shoes, which many people, at least in the business of fashion, associates with the designer. The legal limits of this trademark was tested 2012 in a litigation in New York between

 Yves Saint Laurent & Louboutin. There it was stated that the scope of the Louboutin trademark was limited to shoes with a contrasting color and a red soleAfter this – all other brands using this certain shoe design make therefore themselves possibly guilty of trademark infringement.

Today´s location is Luxembourg because it is there the Court of Justice of the European Union (CJEU) has its seat. But, what is the connection with Louboutin?

The dutch fashion brand Van Haren was sued by Louboutin in 2013, because of the fact that they sold a pair of shoes with a contrasting red sole named ”5th Avenue by Halle Berry”. Due to Louboutin´s trademark registration in the Netherlands, they claimed that the Van Haren shoes in question constituted a trademark infringement & that they were obliged to stop with the manufacturing immediately.

The district court of Hague gave a preliminary injunction April 18th the same year to the benefit of Louboutin. The district court said that the dutch fashion brand´s use of the contrasting red soles constituted a trademark infringement on Louboutin. Why? Because the Van Haren shoes could cause confusion among the relevant public (people could think it was a Louboutin shoe).

Because of this, Van Haren appealed to the General Court of European Union (first instance) and lost, like the preliminary ruling predicted.

Although, compared to the US verdict, the EU judges made no distinction between “just” red soles and ”red soles with a contrasting color” – which obviously added a new dimension to the story of the protection of the Louboutin shoes.

Some say, lawyers must care about details. So, does this mean that no one can make all- red shoes either, (that means, red shoes with red soles), and distribute within the EU? I am sure a few creative shoe designers out there would like to know too.

Van Haren eventually seemed to value their ”5th Avenue by Halle Berry” –shoe more than any court costs in the world. Because – they appealed again. This time to the highest instance ; the Court of Justice of the European Union. 

The breaking news is that the verdict T-631 /14 from the Court came the 16th of July this year (2015) e.g just a few weeks ago. There it was stated, for one last time, that Van Haren (Roland SE) lost the battle of the red soles again and therefore are obliged to pay all court costs resulting from all the instances.

And, not to forget, also to stop manufacture their ”5th Avenue by Halle Berry” shoes.

The outcome of this verdict is of utmost importance for those living in the Member States of the European Union. Because cases that are up for rulings in the courts of the EU becomes precedential – our national courts have to judge in accordance with them. And if Louboutin´s red soles are capable of having trademark protection within the EU – then it is possible for other companies to also be able to protect their e.g signature colors or designs, in addition to their logos and brands. Simply, this case can be claimed to open up the possibility to extended trademark protection for others too.

Well, now it is clear, that if you decide to manufacture those red soled high heels of pleasure within the EU,

You risk to, just like Van Haren did,

feel the pain.

thefashionlegal