Louboutin to CJEU- can a colour be a shape?

A reference for a preliminary ruling has been made to the Court of Justice for the European Union in relation to the long running battle involving the famous shoe designer Christian Louboutin and their well recognized red sole.

The question submitted asks the CJEU to consider the meaning of a ‘shape’ within Article 3 (1)(e)(iii) of the Trade mark Directive 2008/95 asking if a shape is limited to that which is three dimensional or can a two-dimensional one can be included for example a colour.

Article 3 outlines the absolute grounds for refusal that are considered with the construction of the mark. If any of these grounds are found with a trade mark they can not be registered therefore rendering them unprotected.

If a colour is deemed to be acceptable as a two-dimensional shape, the shoe’s sole could be registered as a trade mark.

However this is all depending on the opinion of the Court of Justice for the European Union.

Its decision will be eagerly awaited as it could revolutionise trade marks as we know them.

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