Maker of Nivea wins retrial in battle for blue
Beiersdorf AG, maker of Nivea skin creams, may have increased its chances of keeping the exclusive right to use dark blue on its cosmetics jars and bottles following a decision on Thursday by Germany’s supreme court.
The court said that a lawsuit between Beiersdorf and consumer products group Unilever NV over the use of a certain shade of blue in product packaging had to be reopened.
The Beiersdorf and Unilever court tussle shows how companies are becoming increasingly protective of certain characteristics of their brands such as colour and shape.
Nestle SA, for example, has made an attempt to trademark the shape of its fourfingered KitKat chocolate bar. Rival Mondelez International Inc tried unsuccessfully to trademark the purple colour used for its Cadbury chocolate bar wrappers.
Beiersdorf has used the characteristic dark blue for its Nivea skin care brand since 1925 but only registered it as a so-called trademark colour in 2007.
British-Dutch Unilever demanded the cancellation of the “colour-mark” on grounds that Beiersdorf used the blue purely for decorating the Nivea logo. Unilever’s rival Dove soap and skin care brand also uses blue on its product packaging.
Germany’s patent court cancelled it in 2013 and Beiersdorf appealed the decision.
The supreme court said in its Thursday decision that a colour could be registered as brand-specific if half of consumers linked a product to that colour, less than the 75% the federal patent court had demanded two years ago.
In a survey carried out by Beiersdorf at that time, 58% of Germans had said they expected dark blue containers to contain Nivea cosmetics.
“The federal patent court will now have to obtain a new, neutral opinion poll before issuing a final decision,’’ the supreme court said.
“Beiersdorf welcomes the supreme court’s decision, which stressed that the colour should be seen as a brand and not only as decorative background,” the company said in a statement.
A Unilever spokesman said the company considered that the supreme court’s decision backed its position and said it expected the patent court to confirm its original ruling.
Other companies have also taken action to protect colours associated with their products. Last year, a court ruled that Langenscheidt could use yellow as the trademark colour for its dictionaries after the publisher had sued rival Rosetta Stone.
The European Court of Justice has also made a ruling that allows a bank to copyright a primary colour if it proves that a large majority of consumers already associate that colour with the bank.