By order of December 26, 2022, the IP High Court ruled to dismiss an appeal taken by Louboutin against the Tokyo District Court ruling that denied a source-indicating function of Louboutin’s red soles.
[Appeal court case no. Reiwa4(ne)10051]
Appellant, Christian Louboutin SAS, brought an appeal against the Tokyo District Court ruling decided on March 11, 2022.
In May 2019, Louboutin sued Eizo Collection Co., Ltd., a Japanese company that produced ladies’ shoes with red-colored rubber soles, and sought a permanent injunction as well as damages in the amount of JPY4,208,000 under the Unfair Competition Prevention Law. The Tokyo District Court did not side with Louboutin by finding an insufficient reputation of Louboutin’s red soles perse as a source indicator and thus unlikelihood of confusion.
See details here.
The IP High Court paid attention to the following factors to assess the likelihood of confusion in the case.
- Relevant consumers of high-heels (women from their 20s to 50s) are most likely to try on multiple pairs of shoes at a physical store and select the ones that fit them prior to the purchase.
- The market for women’s high heels can be divided into three categories: (1) luxury brand products, (2) affordable brand products, and (3) inexpensive no-name products. Undoubtedly, Louboutin’s high-heels priced at JPY80,000 and over are classified into category (1). In the meantime, Eizo’s shoes priced at JPY17,000 or less belong to category (2).
- Every high-heel bears a brand name or logo on the insole so that consumers can easily distinguish its supplier.
- E-commerce websites post not only images of ladies’ shoes but also the brand and condition of respective goods in advertisements.
Based on the foregoing, the judge found, irrespective of the resemblance in color on the outsole, no likelihood of confusion between both shoes.
As for the reputation of Louboutin’s red soles, the IP High Court admitted certain consumers may recognize the red soles as a source indicator of Louboutin, however, the judge questioned if the soles have acquired a remarkable reputation among relevant consumers in general based on the research targeted women, in their 20s to 50s accustomed to wearing high-heels, residing in major cities that revealed only 51.6 % of the interviewees answered Louboutin at the sight of a high-heel with red-colored sole and a fact that Louboutin has not been an exclusive supplier of red sole shoes for women.
Masaki MIKAMI, Attorney at IP LAW – Founder of MARKS IP LAW FIRM