Nivea beats Rexona in trademark fight

Nivea is the only personal-care brand in New Zealand that can now use the term ‘‘Black & White’’ to sell its deodorants and antiperspirants, after winning a five-year legal stoush against its competitor.

Nivea’s owner, Beiersdorf AG, legally owns the trademark ‘‘Black & White’’, beating out competitor Unilever, which owns Dove and Rexona, over the rights, a recent High Court judgment showed.

The German company first applied for the trademark in 2014 but Unilever was quick to oppose it.

The Intellectual Property Office allowed Unilever’s opposition on the basis that ‘‘Black & White’’ was not a distinctive character, and the words describe a product’s characteristic or purpose.

But Beiersdorf AG appealed the decision, claiming the agency had erred in both findings, and took the case to the High Court at Auckland.

Unilever claimed the words ‘‘black’’ and ‘‘white’’ were not distinctive and that they described the purpose of its product, which was a deodorant that did not stain black and white clothing.

The appeal was pushed back, but not withdrawn because of a secret settlement between the two parties.

The terms of the settlement were not detailed to Justice Anne Hinton, who said this made for an ‘‘awkward’’ appeal as Unilever essentially did not fight it.

According to trademark law, a name was distinctive if it denoted the origin of a product and distinguished it from its competitors.

Unilever had argued it used the words ‘‘black’’ and ‘‘white’’ in 2012 in Spain, South Africa and Russia, but had no evidence of selling goods with those words in New Zealand.

Hinton said brands could advertise their anti-mark claims by using other words including ‘‘darks and lights’’ or ‘‘navies and creams’’ instead of ‘‘Black & White’’.