Beiersdorf : Federal Patent Court affirms NIVEA Blue

In 2013, the German Federal Patent Court in Munich, on the initiative of the competition, issued an initial ruling ordering the cancellation of the already registered color mark 'NIVEA-Blau' from the German trademark register. Beiersdorf went to the next instance at the time. Two years later, the Federal Supreme Court (BGH) reversed the judgement of the Munich judges and referred the case back to the Federal Patent Court. The 'NIVEA-Blau' case was thus reopened in 2015. Their reasoning was that a color per se could achieve a secondary meaning as a trademark in the daily flow of goods and would thus be a clear indication of a specific company for a certain proportion of consumers if at least 50 percent of German consumers were to recognize the NIVEA trademark solely on the 'NIVEA blue' of a color card - without any further indications.

The Federal Patent Court then had to conduct new consumer surveys to determine in which product categories the color brand enjoys a correspondingly high degree of recognition in the eyes of consumers. In close coordination between the court and the parties to the proceedings, a neutral market research institute obtained six demographic expert opinions, specifically for the following product groups:

1. Deodorants;
2. Hair care products;
3. Body cleansing products, namely shower and bath products, soaps;
4. Shaving products, namely shaving foam, shaving gel, aftershave;
5. Skin care products;
6. Face care products.

In all six product categories surveyed, the recognition value of the typical NIVEA blue was well above the threshold that makes the difference between our color as a pure design element and a clear characteristic of the NIVEA brand. In the 'Skin Care' category, the value of over 71 percent recognition even far exceeded the 50 percent threshold required by the Federal Supreme Court. These clear results were also the basis for the current decision of the Federal Patent Court.