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Christian Louboutin’s signature red-soled heels are universally known as the ultimate signs of luxury in the shoe fashion world. However, despite their fame, the question arises of whether Louboutin can trademark his red soles as exclusively his own.

Louboutin has attempted to obtain trademarks in several countries, and the verdicts are varied. In Switzerland, for example, Louboutin was denied trademark protection because the court ruled that the red sole was not of distinctive character. However, Louboutin has successfully obtained trademarks in the United States, India, Australia, China, and Russia. In Europe, Louboutin was able to register his signature red sole in the Benelux in 2010 and 2013, and the UK in 2009. In June 2011, the European Union Intellectual Property Office (EUIPO) granted Louboutin’s red sole trademark protection, and the trademark was upheld despite opposition from German shoe producer Roland-Schuhe GmbH & Co. KG in 2016, which was dismissed.

However, in April 2013, Louboutin faced off against Dutch shoe manufacturer Van Haren Schoenen B.V. in the Hague District Court, suing Van Haren for an alleged infringement of Louboutin’s Benelux red sole trademark. Van Haren was previously selling blue and black high-heels with a red sole. Louboutin won a preliminary injunction against Van Haren, and the Dutch company had to stop selling the red-soled shoes immediately. Van Haren appealed the decision, claiming that Louboutin’s trademark is not valid under European patent law, or specifically, the absolute ground of refusal of Article 3(1)(e)(iii) of Directive 2008/95/EC. The absolute ground of refusal essentially denies trademark protection to characteristics that consist solely of the shape that gives substantial value to a good. The case made its way up to the European Court of Justice (CJEU), which had to determine whether these characteristics warrant denying trademark protection include only three-dimensional aspects of a good such as volume and length, or also other properties, such as the red color of Louboutin’s sole.

Earlier this year in February, the advocate general of the CJEU gave his opinion to the Court, stating that color does fall under the absolute ground of refusal, and thus, the red sole should be denied trademark protection.

In most cases, the CJEU follows the opinion of the advocate general. However in this case, the Court surprisingly reached the opposite verdict, deciding that the red sole trademark does not seek to protect a shape, but instead the application of color to a specific part of the shoe. Therefore, the absolute ground of refusal does not apply, and the red sole can be offered trademark protection.