Additional AG opinion in Louboutin v Van Haren Schoenen
In September 2017, we reported Advocate General Szpunar’s opinion in Louboutin v Van Haren Schoenen.Following the June 2017 opinion, the case was reassigned to the Grand Chamber – composed of thirteen judges, rather than the usual three or five for CJEU chambers. A further hearing was held in November 2017 and the Advocate General has issued an additional opinion.
The Advocate General has maintained his proposed answer to the question referred:
Article 3(1)(e)(iii)… is...capable of applying to a sign consisting of the shape of a product and seeking protection for a certain colour. The concept of a shape which ‘gives substantial value’ to the goods, within the meaning of that provision, relates only to the intrinsic value of the shape, and does not permit the reputation of the mark or its proprietor to be taken into account.
In other words, the underlying Louboutin mark may in principle be caught by the “substantial value” objection.
In reaching this conclusion, the Advocate General admits that he is “sympathetic” to the argument put forward by Louboutin that aesthetic characteristics can vary in value and desirability over time according to ever-changing fashion trends [para 47]. However, the Advocate General also notes that the referring Dutch court considers that the red colour of the sole gives substantial value to the goods [para 13].
Position marks: Christian Louboutin v Van Haren Schoenen (June 2017)
Christian Louboutin, Christian Louboutin SAS v Van Haren Schoenen BV (C‑163/16) decision, June 2017.Louboutin v Van Haren Shoenen 2017