BGH to rule on dispute over red colour trademark

Two financial institutions have been arguing over the use of a particular shade of red for a long time. The Bundesgerichtshof (BGH) [Germany"s Federal Court of Justice] has to deliver its ruling on April 21 regarding this trademark dispute.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: Colour trademarks (http://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law/trademark-law.html) are of great importance to businesses. Colours create associations in the minds of consumers as well as brand recognition for particular companies, products or services. Two large financial institutions have thus been arguing over the use of a shade of red known as HKS 13 for a long time now. This dispute has already been addressed by the Bundespatentgericht (Germany"s Federal Patent Court) and the European Court of Justice (ECJ).

On April 21, it will be the BGH"s turn to grapple with the case. A German bank has been the proprietor of the trademark for a shade of red known as HKS 13 since 2007. This colour is registered as a symbol for financial services, specifically retail banking services, that has established its distinctiveness through use. A foreign financial institution provides similar services and uses the same shade of red in its lettering. The bank therefore brought an application to invalidate the registered colour trademark on the grounds that the requirements pertaining to the acquisition of distinctiveness through use had not been satisfied.

However, the request for cancellation was dismissed by the Deutsches Patent- und Markenamt (German Patent and Trade Mark Office). The case ultimately ended up before the European Court of Justice. Following a ruling of the ECJ, the Bundespatentgericht ordered the removal of the colour trademark from the register. The colour mark was said to have lacked the requisite distinctive character that is necessary to benefit from trademark protection. Moreover, it could not be determined with sufficient certainty that the colour mark had come to be seen by at least 50 per cent of consumers as an indication of origin vis-à-vis the German bank. The bank subsequently appealed against the decision of the Bundespatentgericht. It is now for the BGH to rule on the matter.

Given that they help create a high level of brand recognition and strengthen consumer loyalty, trademarks are of great value to businesses. The more well known a trademark is, the greater its estimated value. Accordingly, it is important to protect brands so that competitors do not profit from their success. Having said that, an application for registration as a trademark needs to be well prepared and cannot infringe the rights of third parties. Businesses can turn to lawyers who are versed in the field of trademark law.

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