“The Most Wanted Mark” – Louboutin case

“Im throwing on my Louboutins”…with red bottoms – sings Jennifer Lopez. Wearing Loboutins high-heeled shoes with red soles make her happy and feel extremely attractive and seductive. She well knows that every man will be watching her in her red soles shoes.

Christian Louboutin is a French fashion designer.  His high-heeled shoes were first created in the nineties. The designer’s professed goal is to “make a woman look sexy, beautiful, to make her legs look as long as [he] can“.  Christina Aguilera, Joan Collins, Jennifer Lopez, Madonna, Tina Turner, Marion Cotillard, Gwyneth Paltrow, and Britney Spears are among the women who love wearing the famous red bottomed high heeled shoes. So, it should not surprise anyone that famous French designer goes crazy about protecting his mark. 

The red sole is protected as a trademark in several countries, and litigation has taken place in various disputes in which Louboutin claimed infringement of his rights. Litigation generally also involved discussion of the validity or the scope of protection of the trademark.

In 2015 the District Court of the Hague asked preliminary questions to the Court of Justice of the European Union necessary in order to be able to determine whether the trademark is valid or not and what exactly is protected under the EU trademark application showing the shoe and a red sole.

Source: https://citygirlinredlipstick.com/2014/07/17/you-should-wear-more-color/

Louboutin’s shoes are commonly associated with red color, but it is not the color red which means energy, strength, power, and passion which is itself protected. Indeed, the problem of exact protection of this mark is much more complex. Advocate general Mr. Szpunar in his opinion delivered on 22 June 2017 has emphasized that the mark should seek protection for color in relation to the shape rather than to color per se. In the case of Louboutin’s shoes the shape couldn’t be once and for all determined since it will immeasurable limit creative imagination of famous French fashion designer. Therefore, the proprietor of the mark wont claim protection of the contour of his good but will leave himself free to change it form model to model. However, the shape couldn`t be determined one for all it seems to play – in our opinion –  an essential role in protection of the sign because the shape of the sole reflects the shape of female foot. The role of the colour red in this mark seems to be to attract the attention to female feet taking an extremely charming position on high-heeled. This position is commonly known as “kiss me” position because the women raises her heels she can rich up to her loved man so that their lips are of equal height. Translated it might say: “I’m reaching up to you – take me.” The shape of the shoes as the shape of female feet could take various forms. In Loboutine case doubtless it gives substantial value to the goods. The interaction of the shape reflecting the shape of female foot and the energetic and seductive colour red (also colour of female lips) seems to be crucial in protection of the mark. We cannot also forget about the position of this colour it should be applied to the sole of the shoes. From this position the shoes is taking his overpowering force. Finally, red colour won’t get the same charming effect applied to flat shoes. The shoes should be absolutely high-heeled.

The Louboutin case show us that the protection of trade mark is extremely complex. Indeed, the mark can consist of interaction between different elements: colour, variable shape reflecting the shape of one of most delicate part of female body, position and model of good concerned (hight-heeled shoes). It seems that if one of mentioned elements is missing the mark is not the same anymore. Those elements won’t play they fascinating role taken separately but only when they interact creating together famous Louboutin red soles hight-heeled shoes. To realize why combination of those elements make French fashion designer famous we also need to have some basic cultural background about symbolic of red colour and the power of female feet. Decisively the colour, shape, position and cultural background make this mark!

Marta Wyszkowska is an Intellectual Property Junior Associate based in the Warsaw. She graduated in law (Hons), Polish and French Philology from the University of Warsaw. She also hold a PhD degree in comparative literature. Marta is fluent in Polish, French and English. She also speaks Italian.

Print Friendly
Previous articleJohn Lennon vs. John Lemon
Next articleTrademark Genericide: What Is It and How to Avoid It
Marta Wyszkowska is an Intellectual Property Junior Associate based in the Warsaw. She graduated in law (Hons), Polish and French Philology from the University of Warsaw. She also hold a PhD degree in comparative literature. Marta is fluent in Polish, French and English. She also speaks Italian.