Last May, high-end French footwear designer Christian Louboutin suffered yet another loss in its ongoing legal battle over its iconic red-soled shoes. On May 30, 2012, the Cour de Cassation—the highest French court of appeals—determined there was no risk of consumer confusion between a red peep-toe platform heel with red soles sold by Spanish fashion retailer Zara and Louboutin’s own “Yo Yo” design, a nude peep-toe platform heel with his signature red soles. In denying Louboutin’s claims, the court found its French trademark specifications (the description of the mark) to be too vague, noting the absence of a specific Pantone color reference in Louboutin’s trademark. And, in ruling against Louboutin, the court ordered him to pay approximately $3,600 in litigation costs to Zara France, pursuant to Article 700 of the Noveaue Code de Procedure Civile.
Designer Christian Louboutin has testified that he came up with the idea for his red soles after he applied bright red nail polish to a pair of sky-high pumps he felt “lacked energy.” The effect was such a success that it became a permanent feature of Louboutin’s footwear designs. As a result, at least one court has found the color red on the soles served a function, and was not primarily a source identifier. Unfortunately, the red soles have become a permanent feature of other parties’ shoe designs as well, causing the company to spend millions of dollars each year seeking to protect its designs. Louboutin has served hundreds of Digital Millennium Copyright Act notices on Google to remove from its search results photos of Louboutin shoes on websites allegedly selling counterfeits. Louboutin has also set up a website dedicated to identifying the mounting number of fakes.
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