EU General Court (correctly) affirms denial of Community Trade Mark registration for "red-tipped shoelaces"

Posted by Charles Colman

I've previously explained why I strongly oppose the recognition of trademark rights in a single color on articles of fashion -- say, bright red on the soles of high-heeled shoes -- so it will come as no surprise that I'm delighted by this decision by the EU General Court affirming OHIM's denial of a trademark (CTM) registration for red tips on shoelaces: 

I can't address the reasoning behind the General Court's ruling yet, as the decision is currently available only in German and French -- both versions embedded below.  (While I speak some of the former and quite a bit of the latter, I'm wary of opining on legal documents whose nuances might escape me.)

But according to the World IP Review, the General Court's ruling included the following passage: "The applicant provides no evidence to suggest that the colour of parts of the laces of a shoe is usually perceived by the relevant public as an indication of commercial origin." This sounds a bit more like the cautious (and somewhat misguided) ruling of the Second Circuit in Louboutin v. YSL than District Court Judge Victor Marrero's better-reasoned and more principled opinion in the same case... but I'll take it, at least for now -- risky though a short-term solution might be.

 

Remember to stay up to date with fashion law developments by joining the LAW OF FASHION LinkedIn group and reading my shorter publications posted on SSRN -- including this in-depth magazine article (albeit from 2011) on the doctrine of aesthetic functionality, which took center stage in the first half of the Louboutin v. YSL case.

 

Think Schuhwerk GmbH v. OHIM, T‐208/12 (Jul. 11, 2013) (in German)

 

Think Schuhwerk GmbH v. OHIM, T‐208/12 (Jul. 11, 2013) (in French)

 

 

 

[Like everything on LAW OF FASHION, this post is for entertainment and informational purposes only, and does not constitute legal advice or create an attorney-client relationship among any individuals or entities. Any views expressed in this post or at the linked web pages are those of the relevant writer(s) on a particular date, and should not necessarily be attributed to Charles Colman; Charles Colman Law, PLLC; New York University; The Center for the Study of Fashion, Law, or Society; or any subdivisions, agents, representatives, or clients thereof. Neither the writer of this post nor LAW OF FASHION (or any person or entity associated with either) can or will warrant the thoroughness or accuracy of the content here or at the cited sources.]