unilever
14 July 2015Trademarks

Unilever confident despite Nivea trademark setback

Unilever has expressed its confidence about winning a German trademark dispute with the creator of skin cream Nivea, despite a ruling in its favour being remanded for a rehearing.

In a statement sent to WIPR, Unilever said its position to appeal against the registration of Nivea’s blue colour trademark has been strengthened.

The statement comes despite Germany’s Federal Court of Justice throwing out a decision by the Federal Patent Court that had backed Unilever.

In a judgment handed down last week, the court of justice sent the case back to the Munich-based 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’ and that consumers would not perceive this as use of the colour blue.

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

But in last week’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.

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

Unilever said: “The court has confirmed that the registration of the colour brand was not right, because it was covering too wide a spectrum of products. Beyond that this was based on a faulty survey by Beiersdorf on the question of public awareness of the colour blue as a brand mark.

“We are expecting the federal patent court in the next phase of the case to confirm the original judgment of a deletion of the requested brand mark.”

In its decision, the lower court said that sufficient recognition and market penetration could be accepted if more than 75% of the public concerned associated the blue colour as Nivea’s 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 previously told WIPR that it welcomed the decision, that the blue colour 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.

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10 July 2015   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 centering on the colour blue.
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