In a decision of June 2, 2016 (I ZR 75/15), the German Federal Supreme Court referred a case back to the Higher Regional Court of Munich. The plaintiff is the owner of several figurative trademarks for products for freshening the air, showing the silhouette of a fir tree, partly with the word “Wunderbaum” (“wonder-tree”) on it. The trademark owner claimed the nullification of a younger trademark showing the silhouette of a tree, registered for the same goods. Because the silhouette of the tree of the younger trademark was considerably different the success of the action was dependant on distinctiveness of the plaintiff´s trademark. The plaintiff could rely on a market share of more than 50%, high expenses for advertising, a high presence in the media and a market appearance for decades, and a high profile of more than 30% of the relevant circles. The Higher Regional Court Munich found that to be insufficient. It denied a high distinctiveness and based its ruling on a survey within the relevant circles which was submitted by the defendant and which showed a profile of 30 %. The German Federal Supreme Court decided that this was wrong because - amongst other reasons - the survey within the relevant circles did not allow conclusions as to the high distinctiveness of the trademanrk. The case was referred back.