The color red

0000685498441We keep talking about Louboutin and his famous shoes with red soles, just see our earlier posts here. The red sole has been registered as a trademark, but is this trademark a valid one?

No, it’s not, according to the Belgian District Court. The Brussels Court did not agree and reversed this decision. Now, in a parallel procedure, the matter is brought before the court of The Hague.

According to this court, the registration obviously concerns a position mark. The shoe is not included in the registration, just the red color of the sole.

Louboutin filed a market survey to proof the distinctiveness of its trademark. This market survey was helpful to proof this, but one of the outcomes of the survey was that the consumer bought these shoes because of the red sole. In case of a 3D trademark, we all know that the shape should not give the product substantial value. But are the additional requirements for 3D marks applicable to position marks? This question has now been asked to the European Court of Justice. So, to be continued.

Arnaud Bos

“Trademark protection gives freedom to do business.”

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