Unilever left feeling blue after German court’s Nivea ruling

The company that makes the Nivea brand of skin care cream has been handed a victory by Germany’s top court in its trademark dispute with Unilever centring on the colour blue.

In a judgment handed down yesterday, July 9, The Federal Court of Justice sent the case back to the Munich-based Federal Patent Court for a retrial.

The dispute centres on a trademark registered in 2007 by Nivea maker Beiersdorf for the blue colour (Pantone 280 C) used on its packaging. Unilever had attempted to cancel the trademark.

Unilever, which was seeking to protect its Dove brand, claimed that Beiersdorf had only ever used the blue colour in combination with white and alongside the word ‘Nivea’.

Consumers would not perceive this as use of the colour blue, Unilever claimed.

The patent court granted the cancellation request in 2013 and said that, despite survey evidence submitted by Beiersdorf, it could not demonstrate a sufficiently high recognition of the blue colour in relation to the relevant products.

But in yesterday’s judgment the court of justice said that the survey was not carried out correctly.

According to the court, those taking the survey should have been presented with a sample showing only the blue colour instead of a blue card framed in white.

Nivea’s packaging is typically a combination of white and blue, according to the court.

The mark covered "body care and skin care products" and the survey had made reference to these groups. However, the senior court said a new survey should be carried out that differentiates between these types of products.

Furthermore, in its decision, the lower court had said that sufficient recognition and market penetration could be accepted if more than 75% of the public concerned associated the colour as a trademark.

But the court of justice said that 50% was sufficient. The lower court now must now ascertain whether that threshold has been met.

A spokesperson for Beiersdorf said it welcomes the decision and that the blue colour it uses has stood for its brand values since 1925 and that its use has ensured that consumers associate the “characteristic blue” with the “absolute highest skin care competence”.

“For this reason we will spare no efforts in protecting the iconic colour image as well as all other brand and design rights,” the spokesperson added.

Unilever had not responded to a request for comment at the time of publication but WIPR will update the story should the company get in touch.