Christian Louboutin, who’s been having a tough time defending his red sole trademark for a while now, has just suffered another setback in that battle. While a judge has yet to rule definitively on whether or not Louboutin should be allowed to have a trademark on red soles, a French court just gave high street retailer Zara the official go ahead to slap red soles on whatever they like. They even ordered Louboutin to pay Zara 2,500 euros ($3,600) as compensation.
Louboutin’s red sole trademark, which he obtained in 2008, came under dispute last year when he sued YSL for selling a shoe with a red sole. As it turns out, the company also sued Zara in June 2011 for “counterfeiting and unfair competition” for selling a red-soled shoe, according to WWD. The court initially ruled in favor of Louboutin. Zara then issued an appeal, which was upheld on the argument that Louboutin’s trademark specifications were too vague (they didn’t include a Pantone color reference but now do) and that there was no proven risk of confusion between the two pairs of heels.
Granted, Zara’s version probably didn’t look as expensive as a Louboutin, but from a distance or to an untrained eye, a red sole is pretty instantly recognizable as Louboutin. Clearly, the standard for what’s considered confusing isn’t black and white (or should we say red and white?). Still, does this now mean anyone can sell a red-soled pump? According Susan Scafidi, Academic Director at Fordham’s Fashion Law Institute, it’s all still up in the air at this point.
“Since the original decision favoring Zara, Louboutin has re-filed his French trademark to name a specific shade (Pantone 18-1663TP, “Chinese Red”) rather than the color in general — so his claim to red isn’t dead, just limited,” she told us. She also notes that this particular court decision only holds up in France. “There’s no such thing as a global trademark, so don’t expect a fast-fashion outlet near you to suddenly paint its shoe department red. This decision doesn’t have any authority outside France in general or with respect to the U.S. battle between Louboutin and YSL in particular, though the world is clearly watching.”
The main issue in these types of trademark cases comes down to whether or not the product caused consumers to be confused–”and not only while shopping, but also when seeing a flash of red on the street,” Scafidi added. This time, for whatever reason, the court decided it didn’t, perhaps due to the significant difference in price.
While this case may have no bearing on whether or not U.S. judges will rule in favor of Louboutin regarding the validity of his red sole trademark, it can’t have added to the footwear company’s optimism.