BGH failing to nail its colours to the mast

The dispute between Beiersdorf and Unilever over the “Nivea blue” colour trademark is entering the next round. The Federal Supreme Court (BGH) has postponed its decision until July, yet the question of the degree of recognition that a colour trademark must have in order to be protected as a trademark remains. The dispute between Beiersdorf and Unilever could now either continue at the European Court of Justice in Luxembourg or at the Federal Patent Court. If the case remains in Germany, new factors pertaining to the degree of recognition could be brought forward. “This could offer Beiersdorf a second chance” stated Grünecker Attorney Dr. Nicolás Schmitz in “Horizont”. A withdrawal of the colour trademark could have far-reaching consequences: “It would serve as a warning to owners of abstract colour trademarks: from the time of registering the trademark and from then on after they must ensure that the colour consistently features in all external communication” warns Schmitz.