Louboutin Loses Trademark for Red Soles in Belgium, Luxemborg, and the Netherlands

We all remember the Louboutin case against Yves Saint Laurent involving the fight for his trademark registration for his red soles right? Well Louboutin eventually won that case- after appealing. The U.S. court granted a ruling in Louboutin's favor meaning that the court used U.S. trademark laws to analyze the issue in order to reach its conclusion.

More recently, in March 2014, Louboutin challenged his registered trademark in a Belgium Court against Dutch retailer Van Dalen Footwear B.V., who also sold red soled shoes, and ended up losing his trademark. Conclusively, this ruling invalidated his trademark in Belgium, Luxemborg, and the Netherlands. The Judge followed Belgian Trademark Law that states a trademark that adds substantial value to a product is void. And since Louboutin's red soles substantially gives value to his shoes, his trademark is void. This reasoning sounds similar to the "functionality" prong of U.S. trademark law in regards to articles of clothing and the like- which reasons that it is illegal to make a monopoly on the functional, technical, or aesthetic value of a product. Truth be told, where would fashion be if the first person to create a pair of pants owned all the rights to create and sell a pair of pants? The fashion industry would be stifled and this is partially the reason why there is no current copyright protection for clothing (excluding fabric designs/patterns).

But wait; there's more. Back in 2012, Louboutin also lost his red soled trademark in France when he challenged fast retail merchant Zara. The French Court ruled that the red bottoms failed for lack of distinction.  Read the case here.

At this point you may be wondering how can the U.S. grant Louboutin's trademark valid while Belgium and France deny it as invalid. Well since there is no universal intellectual property law, every country can make its own laws as it applies to patents, copyrights, and trademarks. Therefore, it is very important for global fashioners to register his or her fashions in different countries paying attention to the applicable intellectual property laws. It is even more important to make sure that you have a watch dog to make sure that no one is infringing on your intellectual property rights.

Fashion Legallaire's Tip: Fashion Law is well established in Europe and definitely has more years as a profession than does the U.S. However, every country is different when it comes to intellectual property. But perhaps, Louboutin should possibly step his intellectual property game up and register for a design patent. A patent is more expensive, takes more time, but offers more protection. Design Patents can protect the way a product looks but the product must be of novel design. Louboutin may not have invented the red bottomed stiletto, but his influence definitely makes it of novel design. DVF did not invent the wrap dress but she has a design patent; so if she can, Louboutin can. For more information on design patents, read this earlier post here.