Christian Louboutin red sole judgment will be delivered on 12 June

In case C-163/16, the Court of Justice of the European Union (CJEU) has been asked to rule on the interpretation of Article 3(1)(e)(iii) of Directive 2008/95/EC.

Whilst that may sound dull, in fact it is rather exciting… for high-heeled shoe fans. The case revolves around a Dutch shoe shop, Van Haren, whom launched a range of high-heels with a red outsole.

Louboutin went on to claim that Van Haren’s red outsole was an infringement of its Benelux trade mark, for a red outsole on shoes. The CJEU, stated “The description of the mark was that the colour red applied to the sole of a shoe as reproduced (the shape of the shoe does not form part of the mark but is intended to demonstrate the positioning of the mark),”

The Hague’s District Court held that Van Haren was infringing Louboutin trade mark to that end Van Haren should cease the manufacture and sale of the shoes. Van Haren went on to appeal the decision, stating that a trade mark cannot be registered if it consists exclusively of a shape which gives substantial value to the goods. This is provided for by Article 3(1)(e)(iii) of Directive 2008/95/EC.

This appeal was subsequently stayed whilst the Court of Justice of the European Union intervened to answer the question, namely: “Is the notion of ‘shape’ limited to the three-dimensional properties of the goods, such as their contours, measurements and/or does it include other properties of the goods, such as their colour?”

Advocate General Maciej Szpunar provided an opinion on the matter and in short, the answer was that Louboutin should be granted the trade mark. This would then mean that Van Haren would need to cease the manufacture of the red soled shoes.

However, Advocate General Maciej Szpunar’s opinion was just that, an opinion, and whilst it is not binding on the CJEU, the court has had a tendency to follow the Advocate General’s opinions.

Next Tuesday (12 June 2018) is the day that we will find out if the court will follow the opinion and find in Louboutin favour of if it will disregard the opinion and find in Van Haren’s favour.

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