PARIS — Swiss courts have turned down a final appeal by Christian Louboutin to trademark its red-soled heels in what represents the latest setback in the shoemaker’s quest to defend its rights to the signature look.
The Federal Supreme Court of Switzerland in Lausanne has denied the high-fashion footwear brand’s demand for trademark protection, finding that the red soles are merely an aesthetic element. The fact that the brand has won the battle for trademark status in other markets including China, Australia and Russia does not mean the shoes should enjoy the same status in Switzerland, the court said.
Louboutin’s fortunes have been mixed during the house’s legal battles for a monopoly on red-soled shoes. In 2011 and 2012, Louboutin and Yves Saint-Laurent engaged in a year-and-a-half tug-of-war over the latter brand’s right to sell shoes that were red all over, including the sole. A New York federal judge denied Louboutin’s claim that YSL’s monochromatic model represented copyright infringement, but the brand was able to retain its trademark for red soles that contrast with the rest of the shoe in an appeal.
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In 2013, the Dutch company Van Haren was forced to cease production of a red-soled model when the Brussels Court of Appeal ruled in favor of an injunction by Louboutin, finding that the red soles represented a distinctive marker for consumers.
“This case enables us to compare the different approaches taken in countries as far afield as the U.S., Russia, Australia and now Switzerland,” said Alex Brodie, a partner at the Gowling WLG law firm based in London. “The common thread is that claiming a monopoly on a color is always going to be difficult, although not impossible, but you have to frame your application for a trademark very carefully to avoid the color being seen as simply aesthetic as opposed to a guarantee of origin to the consumer.”
Representatives of Christian Louboutin did not immediately respond to a request for comment.