Protecting the Red Sole - A Comparative Study between EU and US Trademark Protection of Colours and Shapes in the Fashion Industry

Abstract: This thesis does describe and analyse the extent of protection of the Christian Louboutin trademark. The registration of trademarks is crucial for the fashion industry, in order to ensure the legacy of the brand and to gain economic value on the investments made. Its main goal is to determine the extent of trademark protection for fashion items and the obstacles they may face in both the EU and the US. The consumer perspective will also be highlighted due to its crucial importance to ensure that have consumers trust in the goods they purchase. Usually, the trademark itself, reflects and ensures quality and commercial origin. Each jurisdiction provides with the possibility to registrate a trademark thus, the application and the scope of such protection differ. Indicators such as the functionality of the goods, its ability to gain secondary meaning and the definition of the word ‘shape’ have been deeply discussed in this thesis. The thesis further demonstrates that the US approach for registration of trademarks seem to be broader in many aspects but, despite this, still hinders fashion items to obtain protection due to their functional nature. The doctrine is of relevance in the judgements of the US Courts at the same time as it is heavily criticised as its starting point is to establish what consumers perceive to be a part of the Christian Louboutin legacy and brand and not purely its aesthetic function. The research concluded that the US may benefit from the objective interpretation of how to broaden the definition of certain requirements similarly like the EU, rather than purely judging from a case-to-case basis.