Last week, the German bank “Sparkasse” lost a lawsuit against the “Santander” bank from Spain. The German Federal Patent Court decided that the registration of a special shade of red as a trademark for banking brands in Germany is not admissible. Santander had brought an action against Sparkasse as they use a similar red and want to continue using it Germany as well.

Now another lawsuit about colour trademarks keeps courts in Germany busy. In 2007, Beiersdorf, owner of the iconic Nivea brand, had protected a certain shade of blue as a registered trademark for skincare. Unilever, which use a similar dark blue for their Dove brand, brought an action against Beiersdorf at Germany’s Federal Patent Court. Their reasoning: Nivea only uses dark blue for their containers not for the logo itself. The court delivered the same judgement as in the Sparkasse-Santander case: Nivea was asked to cancel the registration of the trademark.

Nivea now appealed the judgement at the Supreme Court in Karlsruhe and won their case. The Supreme Court argued that a colour can be regarded as brand-specific if 50 % of the customers link the colour to the brand – that is 25 % less than the Patent Court demanded two years ago. At that time, Beiersdorf presented an opinion poll showing that 58 % of the customers associated dark blue with Nivea. Now the Patent Court is required to carry out a new and independent opinion poll for their final judgement.

These two lawsuits underline two essential questions:

• Can a brand reclaim the right to use a special colour in its industry alone or are colours not subject to protection as a trademark?
• When exactly can a colour be regarded as brand-specific and how many consumers do have to link the brand to that colour?

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