In a decision of November 23rd, 2015 (I ZR “Sparkassen.Rot/Santander-Rot”) the German Federal Supreme Court has set aside the decision of the Higher Regional Court Hamburg and has referred the case back. The Plaintiff is the owner of the color mark Nr. 302 11 120 “Red (HKS 13)” which has been registered for having a well-known secondary meaning. The color mark has a priority of February 7th, 2002 and has been registered on July 11th, 2007. The Spanish Financial Corporate Group “Santander” which as of the 1980’s uses in many countries in its advertisements a red color has been sued. The German affiliate which does so as of 2004 has been sued as well. The Higher Regional Court has partly rejected the action and partly stayed it because of cancellation proceedings which are pending against that color mark in suit. On the basis of the arguments which have been brought forward the German Federal Supreme Court concluded that a trademark infringement cannot be excluded by saying: “if a designation is exclusively used as a company symbol then a cease and desist claim according to Art. 14 par. 2 no. 2 and par. 5 German Trademark Act does not exist due to the lack of the use as a trademark. However, a cease and desist claim may be given based upon a corresponding application of Art. 14 par. 2 no. 3 German Trademark Act [unfair exploitation and derogation of the distinctiveness of a well known trademark] may be given if the trademark in suit is renowned“. Even cease and desist claims based upon the Unfair Competition Act may be given according to the German Federal Supreme Court.