Louboutin vs Chairs
What is trademark?
Louboutin Legal Team: Xavier Ragot, General Counsel
Locations: Worldwide Stopfake Campaign. Current case before the ECJ awaiting ruling on EU trademark law.
AG advice to ECJ and controversy: stated that shoe sole even in combination with colour is too common to be a trademark, some forms must be kept free and made comparison to a chair.
Here's my humble opinion on the topic with minor knowledge of trademark case law. I think Mr Louboutin should get his way. Shoes are not chairs and the situation here is not about turning just any product of common use into a trademark. If we would be to stick with the chair analogy, if we take that same chair Attorney General had in mind and paint its legs or better, paint specifically 2/3 of its legs in a specific shade of green colour. The said design becomes the world's most popular and the most desired chair the gardening industry has ever seen. It becomes a global sensation worth millions of euros. Wouldn't the designer be well with in her rights to protect that idea? The idea which goes to the root of her legacy? The idea that put her on the map of the gardening industry and furniture design. The chair designer wasn't known just for designing just any chairs. She became known for designing this specific chair, with 2/3 green legs and in that specific green!
Mr Louboutin worked his entire life and built a legacy with this idea of painting his shoes sols red. This gave his products very special appeal. It made his products famous and desirable across the globe. To him, the red sole is no different than a company logo or name. This red sole is a symbol of Louboutin brand. This red sole is an emblem of the Louboutin company. It is a propriety motif, worldwide recognised sign and hallmark of Louboutin designs. The red sole makes the design characteristic to Louboutin brand, history and success and this specific trait is attributable to the legacy Mr Louboutin built in the last 20 years or so.