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Seeing red

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About Jamie

By Jamie Berry

Many a lady would go head over heels for a pair of Christian Louboutin shoes. The signature patent-red soles are synonymous with success, wealth and power; an unmistakeable design in the
eyes of the consumer and now, the law.

Going toe-to-toe

The European Court of Justice (“ECJ”) has recently ruled in favour of the luxury footwear designer in the case of Christian Louboutin and another v Van Haren Schoenen BV C-163/16. The ECJ, in its much awaited judgment concerning the red sole trade mark of Christian Louboutin, confirmed that the trade mark validly protects the application of a colour to a specific part of the shoe – its sole. Van Haren Shoenen BV, the Dutch shoe retailer who is now prohibited from selling similar red soled heels, had counterclaimed on the basis that the intrinsic value of the high-heeled shoe lay in the attractiveness of its shape. Had the argument been successful, it would have been an absolute ground to invalidate the trade mark.

The application to your business

Two words; “brand protection”. While the Louboutin case was not solely (forgive the pun!) about colour, colour serves as a good example for the strategic use of trade mark protections. Of itself, colour is not unique, but it becomes unique by virtue of its association with a product or service. Take, for example, Tiffany’s blue packaging, UPS’s brown automobiles or even Barbie’s vibrant pink – each respectively protected by a trade mark. The same protections can be afforded to logos, slogans, designs or even gestures (such as Asda’s ‘double pocket tap’). There are nuances to be considered in each instance, but the strategic protections can be far-reaching.

Don’t be left red-faced

Albeit a voluntary consideration, registration of a trade mark is certainly advisable. Not only is it a valuable asset (and commercially exploitable too), but it gives you, as the owner, the right to sue any person acting without permission who uses an identical or similar mark in the course of trade in connection with identical or similar goods. Moreover, you avoid the notoriously time-consuming and expensive exercise of pursuing a passing off claim - the fall-back remedy to those without trade mark protections.

Should you want to protect your brand, please contact our Business Law team. Whether you require advice regarding the registrability of your proposed mark, undertaking the application itself or even dealing with third party objections, we would be pleased to assist you.

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