French luxury shoe brand Louboutin, typified by its red soled footwear, has had a major setback in its lawsuit against Dutch shoe retailer Van Haren.

The European Court of Justice’s advocate general said on Tuesday that a trade mark combining colour and shape can be refused or declared invalid under EU law.

Louboutin started the legal action in 2012, when Van Haren brought out a range of shoes by actress Halle Berry which included high heeled shoes with red soles. The company said the shoes infringed the Louboutin trade mark and was granted a temporary injunction against the Dutch high street staple.

In 2014 the case was referred to the European court for clarification. Van Haren argues that Louboutin’s trade mark is invalid because EU law does not allow trademarks that are made up of only a ‘shape that gives substantial value to the goods.’

Now advocate general Maciej Szpunar has said that he considers shape to also include the colour, and that this means the court should reject Louboutin’s case.

In addition, he said that his analysis relates ‘exclusively to the intrinsic value of the shape and must take no account of the attractiveness of the goods flowing from the reputation of the mark or its proprietor’.

The advocate general’s decision is not binding on the court but judges usually follow his opinion.

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