The court puts its foot down - Fashion designer Christian Louboutin loses trademark protection in three countries for his distinctive red-soled shoes, leaving competitors free to follow in his footsteps.
Importantly, trademarks and designs have a different legal scope; trademarks enjoy protection that is unlimited in time, rights to designs are limited. Whereas a trademark seeks to protect the identity of the origin of the goods and services, designs seek to protect the goods (and the substantial value of their appearance) in their own right. Based on the evidence brought by Van Dalen Footwear (represented by Simmons & Simmons LLP,Amsterdam), the court found that the red sole gave the goods their substantial value, as consumers had stated that they would not have paid as much for their shoes if they had not had the red soles. As such, the red sole did not qualify for trade mark protection. Secondly, the court concluded that Louboutin's trademark lacks a distinctive character because red-soled shoes are common on the market, generally non-traditional trademarks for shapes and colours are only registrable if they have acquired distinctiveness through extensive use.