This piece of the article is authored By: Amaan Ahmad a 4th year law,(B.A.LL.B. (Hons.)) student at Jamia Millia Islamia, New Delhi and co author is Pritesh Hajare a 3rd year,B.com LL.B.(Hons.) student at Tamil Nadu National law University, Trichy.
Abstract
The battle over Christian Louboutin’s iconic lacquer-red sole is more than a luxury brand dispute — it is a defining moment in the jurisprudence of non-conventional trademarks in India. The contradictory rulings of the Delhi High Court in 2017 and 2018 have exposed a deep policy tension at the heart of Indian trademark law: the conflict between protecting acquired distinctiveness of a single colour and preserving the public domain of colour for fair commercial competition. This article critically examines that tension, analyses the statutory framework, and argues for a calibrated legislative reform to resolve the ambiguity.
Trademark law has historically protected words, logos, and symbols as identifiers of commercial origin. However, the modern marketplace has compelled law to engage with non-conventional marks — sounds, scents, shapes, and most controversially, single colours. Few disputes have dramatised this challenge as sharply as the Christian Louboutin red sole controversy.
The Pantone 18-1663 TPX red that coats the sole of every Louboutin stiletto is not merely an aesthetic choice — it is a deliberate branding strategy that has, over decades, become synonymous with luxury footwear in the global consumer mind. Yet, whether a single colour can constitute a protectable trademark under Indian law remains dangerously unresolved. Two conflicting judgments of the same court — the Delhi High Court — delivered within six months of each other in 2017 and 2018 — have created a jurisprudential vacuum that has significant policy implications for innovation, competition, and the future of non-conventional trademark protection in India.
II. The Louboutin Red Sole: A Trademark Built on Distinctiveness
Christian Louboutin began affixing red lacquer soles to his shoes in 1992. By the 2000s, the red sole had achieved a level of global recognition that lawyers call “secondary meaning” — the colour, in the context of high-end women’s footwear, had ceased to function merely as ornamentation and had become a badge of origin, unmistakably identifying the brand.
Louboutin obtained trademark registrations for the red sole in India under Registration No. 1922048 (Class 25 — footwear) and two others in Classes 3 and 14. This registration was never challenged on substantive grounds at the IP Office. The question of its enforceability, however, erupted in litigation when Indian manufacturers and retailers began selling shoes with red lacquer soles, precipitating a series of infringement suits before the Delhi High Court.
III. The Contradiction at the Heart of Delhi High Court Jurisprudence
The 2017 Judgment: Christian Louboutin SAS v. Pawan Kumar & Ors.
In December 2017, a Single Judge of the Delhi High Court not only upheld Louboutin’s right to restrain infringers but went further — declaring the red sole a well-known trademark under Section 11(6) of the Trade Marks Act, 1999. The court recognised that the red sole had, through decades of exclusive and consistent use, acquired the capacity to distinguish Louboutin’s goods from those of all other traders. This was a progressive, consumer-oriented ruling acknowledging the market reality that a colour could function as a source identifier when it achieves sufficient acquired distinctiveness.
The 2018 Judgment: Christian Louboutin SAS v. Abubaker & Ors.
Barely six months later, a different bench of the same court reached a diametrically opposite conclusion. The court held that a single colour cannot constitute a “mark” under Section 2(m) of the Trade Marks Act, 1999, which defines a mark as including a “combination of colours or any combination thereof.” The court’s textual reasoning was strict: since the legislature used the phrase “combination of colours” and not merely “colour,” a single colour was intentionally excluded from the definition of a protectable mark.
Consequently, no question of infringement could arise, as Louboutin could not “exclusively appropriate” a single colour. The argument that red had acquired distinctiveness through long use was also dismissed — if colour does not qualify as a mark at the threshold, acquired distinctiveness becomes irrelevant. The suit was dismissed.This contradiction — a well-known trademark on one hand, and a mark incapable of existence on the other — is not merely academic. It creates genuine legal uncertainty for brand owners, counterfeiters, and honest traders alike.
IV. The Statutory Framework and Its Ambiguity
The core of the legal dispute rests on the interpretation of Section 2(m) of the Trade Marks Act, 1999, which defines a “mark.” The provision lists: device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging, or combination of colours or any combination thereof.
The restrictive reading of “combination of colours” adopted in Abubaker is textually defensible but functionally problematic. The definition is expressly inclusive — the statute says a mark “includes” these elements, not that it is “limited to” them. Indian courts have repeatedly recognised that the definition of a trademark is inclusive and capable of expansion. A purely literal interpretation that excludes single colours contradicts the spirit of harmonisation with international norms, including the TRIPS Agreement (Article 15), which mandates that any sign capable of distinguishing goods shall be eligible for trademark registration.
Further, Section 9(1)(b) of the Act bars registration of marks consisting exclusively of signs which designate the kind, quality, or other characteristics of goods — but this bar is subject to the proviso that a mark which has acquired distinctive character as a result of use made of it shall not be refused registration. This proviso — reflecting the “secondary meaning doctrine” — directly supports Louboutin’s position and was inadequately addressed in Abubaker.
Section 31 of the Act provides that a registered trademark shall be prima facie evidence of its validity. Since Louboutin held valid registrations, the Abubaker court’s outright denial of enforceability without formally invalidating those registrations sits uneasily with the statutory scheme.
V. The Policy Tension: Monopoly vs. Competition
The deeper issue beneath the red sole controversy is a fundamental policy conflict between two equally legitimate legal interests: Protection of Acquired Brand Equity:Trademark law exists to protect the investment that traders make in building brand identity. Louboutin spent three decades and enormous resources cultivating consumer association between the red sole and luxury. Denying protection to such a deeply embedded identifier not only harms the brand owner but also deceives consumers — the very people trademark law is designed to protect. Counterfeits bearing red soles cause consumers to make purchasing errors based on false origin signals.Preservation of the Colour Commons On the other side stands the “colour depletion” or “colour scarcity” argument: colours are finite. If courts grant monopoly rights over single colours to individual brands, competitors in that market segment will be progressively excluded from using those colours, even in entirely non-confusing ways. The Supreme Court of the United States confronted this in Qualitex Co. v. Jacobson Products (1995), where it ultimately allowed colour trademarks subject to non-functionality and acquired distinctiveness standards — a balanced approach that India has not yet formally adopted.The EU resolved this tension through the Court of Justice of the European Union (CJEU) in Christian Louboutin v. Van Haren Schoenen (2018), holding that a sign combining a colour with a specific shape is not a “shape” mark and falls outside the absolute grounds for refusal — thus permitting red sole protection. This nuanced approach recognised the positional specificity of the red (applied only to the sole, not the entire shoe) as a key distinguishing factor.
VI. The Need for Legislative Reform: A Policy Roadmap
India’s Trade Marks Act, 1999 was drafted before the explosion of non-conventional trademark disputes. The current legislative ambiguity demands deliberate policy intervention. The following reforms are proposed:
- Amend Section 2(m) to explicitly include single colours as registrable marks, subject to proof of acquired distinctiveness through use — aligning India with TRIPS obligations and international best practices.
- Introduce a Positional Trademark Framework — recognising that colour applied to a specific position on a product (like the sole of a shoe) deserves heightened consideration as a source identifier, as opposed to colour applied to an entire product surface.
- Codify the Secondary Meaning Doctrine explicitly within the Act — the existing proviso to Section 9(1)(b) should be expanded to create a clear statutory pathway for registering colour marks that have acquired distinctiveness, with guidelines on evidence of long use, market surveys, and consumer recognition.
- Mandate Consistency in Judicial Benches — the contradictory 2017 and 2018 rulings arose partly because different benches of the same court took independent views without referring the issue to a larger bench. A reference mechanism for conflicting precedents in IP law should be institutionalised.
- CGPDTM Guidelines on Non-Conventional Marks — the Controller General of Patents, Designs and Trade Marks should issue detailed examination guidelines for colour trademark applications, specifying evidentiary standards for distinctiveness.
The red sole controversy is not merely a luxury brand dispute — it is a litmus test for India’s readiness to protect non-conventional trademarks in a modern, design-driven global economy. The contradictory rulings of the Delhi High Court reveal that the Trade Marks Act, 1999 is structurally ill-equipped to deal with colour marks, and that judicial interpretation alone cannot substitute for clear legislative policy. As India aspires to be a global hub for design innovation and brand creation, a coherent, TRIPS-compliant framework for single-colour trademarks is not a luxury — it is a legal necessity. The red sole must not remain in a jurisprudential grey zone; it deserves a policy answer as vivid and definitive as the colour it bears.