Can Red Soles be Trademarked? EU Court Say No

TrademarkMost people can identify dozens or hundreds of trademarks at a glance.

"Apple," when used in connection with MacBooks and iPhones, is a trademark — as is the Apple logo.

The name "Nike" is a trademark, as is the famous Nike "swoosh" symbol.

But not only names and symbols can be trademarks.

Sound Marks

A trademark can be registered for many other "identifiers" — including colors, shapes, and even sounds and smells.

A trademark can be pretty much anything that's distinctive and identifies the source of goods or services.

As I wrote in this blog,

The Trademark Trial and Appeal Board (TTAB), in the case of In re Gen. Electric Broad. Co., ruled that sounds can serve as trademarks “in those situations where they assume a definitive shape or arrangement and are used in such a manner so as to create in the hearer’s mind an association of the sound with a service [or a good].”

For example,

If you use a Microsoft computer, you probably hear this trademarked sound.

And if you use a Mac, you hear this startup sound, registered as a trademark for computers and operating system software.

When you watch a movie, you might hear the MGM lion’s roar or the Fox fanfare or the James Bond theme.

Protecting Colors

One famous trademark case involving color was decided by the US Supreme Court in 1995. One company started selling dry cleaning pads in the same shade of green-gold as a  competitor used, and the Court decided that was trademark infringement and unfair competition.

Tiffany blue, Owens-Corning pink (used for insulation materials), and T-Mobile magenta are also trademarked.

Red Shoes

However, the highest  court in the European Union (EU) recently ruled that the red color of the soles of Christian Louboutin  shoes could not be protected  as a trademark.

As the New York Times reported, the shoes can sell for more than $1000.

The soles are  a distinctive shade of lipstick red (Pantone 18 1663TP).

Louboutin  first painted shoe soles with his assistant's red nail polish about 25 years ago. He says  that the red color has become his signature.

In 2012,  Louboutin sued a Dutch  company that was  producing more affordable red-soled high-heels.

The case reached the EU's high court, which found that the color of the shoes was not a "separate entity" from the shape of the shoes.

In the EU  (unlike in the US) shapes usually can't be trademarked.

Out of Style?

Although Louboutin may not be able to prevent copycat shoes from being sold in the EU,  he won a lawsuit against Yves Saint Laurent in a US federal appeals court, which found his red soles were a source-identifying trademark.

The problem is, fashion is global, and once people in the EU stop identifying red soles with high-priced chic shoes, even if the mark is protected in the US its value in the US may decline, as the shoes are no longer thought of as exclusive.

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