As always, this case is much more complicated as you can explain <media 6931 _blank>in two or three sentences in a TV interview</media>.
The red soles are keeping the courts busy for years. The French fashion designer Christian Louboutin wants to to trademark high heel women shoes throughout Europe and the world. Many prominent women wear them, in the TV shows like "Sex and the City". The designer strongly defended his idea, led many legal procedure - with different output.
In the United States Louboutin fought four years ago already against Yves Saint Laurent, who had brought on the market a completely red women's shoes (including Red sole). Louboutin lost - in this case not surpringly. The court desided that just the contrast between red sole and the rest of the shoe was formative. However, that was not the case of Yves Saint Laurent overall red colored shoe.
Also in Europe, Louboutin led lawsuits against well known fashion companies with varying outcome. So this case is even more exciting, because it might set the course for whole Europe.
The retailer Deichmann offered under their brand "5th Avenue" similar, high-heeled shoes with red sole - for less than 40 euros. The high heels of Louboutin are generally no less than euros 500. The fashion designer defends his possible trademark rights once more and tries to prohibit the sale and demands damages as well.
The shoes with the distinctive soles are registered as an "other brand", no. 8845539 in Europe including the United Kingdom and the BeNeLux countries. The description of the Trademark Office says: "red is the color attached to the sole of a shoe (Pantone Code 18. 1663TP), (the contour of the shoe is not part of the mark, but it is to mark the position of the brand).
"Basically the case is different angles interesting. It is conceivable that a fashion designer can demand a so-called position mark ("other") for his sign under special circumstances. In very rare cases it possible as an indication of origin to put a special sign always on a specific part of the goods. Position marks are however recognized, but do not often occur. Well-known examples are the "button in the ear" by Steiff, the red stripe under the sole of the shoe by Lloyd or also even just an exclamation mark on a jeans pocket.
There is also the possibility of an so-called colour mark, as Louboutin registered the red color Pantone 18.1663TP. But high requirements are placed on the registration of a colour mark – there has been a few disputes between trademark owners in the past concerning just colours- the Nivea blue, the yellow of Langenscheidt and the red of the Stadtsparkasse faced Court on the test bench.
So you can be very curious about the decision of the European Court of Justice from Luxembourg in this trademark case.