christian louboutin made an objection under its registered trademark. The mark for the color red, is applied to the sole of a shoe. christian louboutin shoes claimed that the red sole used by Van hair is identical to its “sole brand”, at least thus corresponds. Moreover christian louboutin argued that Van Haren selling these shoes take unfair advantage of the reputation that the sole brand and that damage to the brand, because its distinctiveness is affected. Use by this
Defense of Van Haren
Van Haren said that the registered trade mark of christian louboutin color brand concerned. The Libertel judgment provides for stringent requirements for allowing a color mark. These requirements include:
- The color may not be printed on paper, but only at the depot should be marked with an internationally recognized identification code;
- May have taken into account the public interest in assessing whether the color as a trademark;
- The use of the mark has been made to be included in the assessment.
However, the court finds that the sole brand of christian louboutin brand is not a pure color, but also has characteristics of a shape mark. The stringent requirements set does not have to be met.
It is settled law that a sign can serve as the lends itself to the products (services) for which the mark is registered identify as originating from a particular undertaking. As a trade mark And thus to distinguish that product from products of other undertakings. The judge ruled that “the provisional opinion has become the sole brand is established and, in any case, give them distinctive sufficiently plausible ‘. The relevant public in the Benelux barrel in the opinion of the court the red sole as a distinctive sign of christian louboutin shoes and soles is not purely decorative. That relevant public both (potential) customers of high-heeled shoes in the Benelux and also the wide circle of interested third parties in fashion. The fashion conscious ladies should therefore all count to the public in this case.
That the public perceives as the sole distinguishing mark is (especially) demonstrated that ‘refers to the christian louboutin shoes which is called this as coming from christian louboutin recognizable and be recognized by the red sole by several sources in different media.
Then the judge that compared with the set above and framed, registered brand of christian louboutin there is similar use by Van Haren judges. The visual effect christian louboutin achieved by its brand to apply high-heeled shoes, comes back in the shoes of Van Haren, which are defined as’ fashionable high-heeled shoes. In addition, the court states that “even the way the red sole in all shoes christian louboutin extends into the inside of the heel, is used in her shoes. Van Haren” At least as far as the black and blue shoes with a red sole concerns . Van Haren also sold red shoes with red sole, these have remained at the request of christian louboutin outside assessment.
In conclusion, the judge on the basis of the distinctive character of the sole mark, the degree of similarity between the mark and the almost equal application by Van Haren on (almost) were identical to the conclusion that there is that the public confusion hit. However, may not purchase, because of the large price difference, but at least ‘post sale’. The judge recommends Van Haren therefore stop any infringement of the trade mark under penalty of a fine of € 20,000 per day or (at your option of christian louboutin) € 500 per pair of shoes within 24 hours. At least more than the average fashionable lady for a pair of shoes from Van Haren will pay.