In a trademark infringement case against Van Haren Schoenen, a shoe retail outlet in the Netherlands, the European Union’s highest court recently announced that a trademark combining color and shape may be declared invalid. The case will go back to a Dutch court for final decision. This is a significant blow to the Christian Louboutin brand. Louboutin has sued several designers in recent years for trademark infringement of its famed red-soled shoes, including Yves Saint Laurent, Alba Footwear, and more. In the past, the designer has shown in U.S. proceedings that consumers associate the red sole with the Louboutin brand and other designers cause brand confusion by using the signature red sole on their shoes. It appears, however, that the protection for those famous red soles could be lost.The EU ruling will not directly impact the U.S. trademark infringement rulings and settlements that currently protect the Louboutin red sole. But one has to wonder if the designer will be able to continue to demand the high prices (often more than $750 a pair) for his shoes if high-heels from other designers with similar red soles can be purchased from the EU at substantially lower prices.Trademark infringement cases in the fashion industry are prevalent and can make for protracted disputes in the courts. From Louis Vuitton and Tiffany & Co., to Adidas and Converse, designers keep a sharp eye on potential infringements. The basic elements of an infringement case require a party to prove the validity of its trademark, that the mark was older than the other party’s mark, and that the other party’s use of the newer mark causes consumer confusion. Key factors the court considers in making its decision are the similarities between marks and the likelihood that the newer mark would cause consumer confusion. This latest EU case, however, relies on a different and EU-specific rule that trademarks may not combine both color and shape.Attorney Jack Gross frequently counsels businesses on intellectual property matters including trademark, copyrights, licensing, and other issues related to brand protection.