The Devil Wears Solely Louboutin. The Red Sole as a Trade Mark in Light of the Rulings of CJEU and the US Court of Appeals for the Second Circuit

Abstract

The iconic red sole of the high-heeled shoes designed by legendary French shoemaker Christian Louboutin is considered not only as a beautiful decorative element of the shoe but also a Louboutin signature. To protect his brilliant idea of lacquering a shoe outsole with the Chinese Red colouring the designer had pursued a trade mark protection for his red sole in many countries which resulted in many court battles with his competitors and trade mark invalidation attempts around the world. The aim of this article is to present and compare results of such battles in the US and before the CJEU with particular emphasis on considerations of applying the doctrine of aesthetic functionality to the red sole mark in both legal systems. The author has conducted her research using mostly the dogmatic method and the comparative method.

Keywords

• Christian Louboutin
• red sole
• trade mark protection
• non-traditional trade marks
• absolute grounds for refusal or invalidity
• functionality doctrine