In its recent preliminary ruling, the Court of Justice of the European Union has essentially said that Louboutin's signature red-sole trademark cannot be annulled on the basis of the shape mark nullity grounds as it is not a sign consisting exclusively of the shape of the goods.
As a result, the Court affirmed Louboutin's position that its red-sole mark is not a shape mark in se, but rather a position mark. While the shape of the goods does play a role in the spatial delimitation of Louboutin's red colour, it solely intends to protect the application of a colour on a specific position of the shoes, instead of protecting the shape as such.
The Court clearly found that there was no need to further enter into the question whether the substantial value of the shoes is derived entirely from the intrinsic appeal of the red sole taken on its own or because of Louboutin's reputation and marketing efforts.
As the referring court of The Hague had already indicated that the invalidity of the red-sole trademark would depend on the application of the shape mark nullity ground, the decision is a clear win for Louboutin.
PETILLION was featured in articles of the World Intellectual Property Review (WIPR) commenting on the case.
Read the first article of 14 February 2018 here.
Read the latest article of 12 June 2018 here.