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Litigation

Blue-chip companies clash over color trademark

Two cosmetic companies have been arguing in a German court over their claims to a shade of blue. The debate is the latest development in a string of litigation underscoring the importance of colors in corporate branding.

Two household names in the cosmetics industry, Nivea and Dove, squared off in a German courtroom on Thursday over the use of a particular shade of dark blue on their product packaging.

The hearing, which took place in front of a high court in Karlsruhe, marked the latest legal squabble here over companies' claims to specific hues and highlighted the importance of colors in corporate marketing strategies.

Last year, a German administrative court heard arguments from dictionary publisher Langenscheidt about its trademark yellow. Before that, the European Court of Justice established that banks reserved the right to patent the color red if enough consumers already associated the primary color with a particular financial institution.

Critical mass

It came down to a similar question in Karlsruhe on Thursday: How many people have to see dark blue and think of Nivea for the cosmetics company to be able to protect that color as part of its branding?

In an October 2013 ruling, the Federal Patent Court upheld a claim by Unilever, Dove's British-Dutch parent company, that it too should have the right to package its products in the same shade of blue as Hamburg-based Nivea.

At the time, the patent court said in order for a color to be registered as an identifying feature, at least 75 percent of the German public must associate it with a specific product. But the grounds of Nivea's claims were challenged when a survey found only about 58 percent expected dark blue containers to be filled with Nivea cosmetics.

A fighting chance

It seems, however, that Nivea may still have a chance at a legal victory.

Wolfgang Büscher, who chaired a panel of five judges, said one issue the court would consider was whether "the federal patent court set a standard that is too strict."

"At my age, one knows Nivea's blue tin with the white writing very well and knows there is lotion inside," he added.

The court has said it will reach a verdict on June 9.

cjc/hg (dpa, Reuters, AFP)

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