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Christian Louboutin’s Red Soles Face Another Legal Setback

Though only referenced as “bloody shoes” in Cardi B’s hit song Bodak Yellow, there’s little doubt that listeners immediately recognized the shout out as Christian Louboutin’s signature red soled stilettos.

Even with that level of brand recognition, the designer has been in a near-constant battle for years to uphold the trademark for its crimson outsoles.

This week, though, the brand faced a setback in the European Union.

The label has been battling Dutch company Van Haren, claiming that brand’s Fifth Avenue by Halle Berry collection, which includes footwear with red bottoms, infringes on Louboutin’s color trademark. Louboutin holds a trademark in Belgium, the Netherlands and Luxemburg for Pantone 18 1663TP used on the soles of shoes.

Based on that trademark, Van Haren was initially forced to discontinue sale of the shoes but ultimately the company filed an appeal looking to invalidate Louboutin’s protection because “the shape that gives substantial value to the goods” cannot be protected under EU law.

On Tuesday, the European Union’s Advocate General Maciej Szpunar handed down an opinion stating that the color of Louboutin’s soles was not separate from the shape, bringing into question the legality of the trademark. The case will now return to Dutch courts. Though the judges there are expected to follow the European Court’s findings, it’s not necessarily the case.

Color has been a hot legal topic, spanning product categories. The footwear case follows several other high-profile cases, including Cadbury loss in its attempts to block Nestle from using purple packaging and BP’s attempt to protect a specific shade of green in Australia.

In 2012, Louboutin won a case against Yves Saint Laurent in U.S. courts, which ultimately upheld the former’s right to red soles (on non-red shoes). The case was bolstered when jeweler Tiffany, which is known for its robin’s egg blue hue, entered a brief supporting the soundness of color as intellectual property.