Well-known red sole, not even a trademark?

Delhi High Court recently held that a single colour is incapable of being a trademark since it is not even a “mark” as defined in the Trade Marks Act, 1999. In a judgment on 25 May, the court observed that in order to become a “trademark”, the matter in question would first have to be a “mark”. When a mark is used in the course of trade and identifies the source of goods as originating from a particular manufacturer or seller then that mark becomes a trademark. The definition of “mark” under section 2(m) of the act “includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof”. As with regard to colour this definition contains only “combination of colours”, the court held that a single colour, not being envisaged in the definition of “mark”, is also incapable of being elevated to the status of a “trademark”.

In this case, Christian Louboutin SAS v Abubaker & Ors, the mark in question was the colour red applied on the entire outer face of the sole of ladies’ footwear. The plaintiff claimed exclusive ownership over its red sole trademarks in respect of the ladies’ footwear it designed and manufactured. A suit for passing off and infringement of trademark was filed, seeking an injunction and damages against the defendants, who were selling shoes the soles of which were red.

Omesh Puri is an associate partner and Dheeraj Kapoor is a senior associate at LexOrbis.