Valid yellow colormark Kärcher

Ever since 1974, Kärcher has been using the color yellow for its cleaning devices. This same yellow color is also used consistently on their website, brochures, packaging, promotional material and all forms of advertising. In 1990, the company has registered the color yellow as a trademark. It has become clear in EU case law that a PMS or RAL code ought to be submitted with a color claim (only a description is considered too vague). For that reason, in 2012 a new application was filed for the color mark.

 

Varo sells pressure cleaners in the combined colors yellow/black. Kärcher claims this is an infringement and demands a ban. The central question is to what extent Kärcher can rightfully rely on both color marks.

Court rules that the old color mark from 1990 is invalid. It has not been claimed with enough precision, as any color code is missing. The new trademark however has been submitted correctly. Color marks are often not immediately recognized as a trademark by the consumer, unless the color has become established through long and intensive use which is the case here.

Kärcher has consistently used this specific tone of yellow as a distinguishing mark for decades and the marketing investment has been substantial. Market research shows that consumers recognize this tone of yellow as Kärcher’s brand. Result: infringement, prohibition and payment of damages.

trademarks



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IP quiz Trademarks

Puma is one of the bigger sports and lifestyle brands in the world. The core-business is the design, development and sale of (sports) shoes, (sports) clothing and accessories. In 1960, Puma registered an international trademark for a device designed in 1958: the formstrip. Since then, Puma has registered approximately 90 formstrip trademarks with validity in the Benelux or the European Union. Puma claims that this is a serial mark. Monshoe is a wholesaler of women's shoes and related products. The company designs and develops Monshoe shoes which it largely markets itself. Monshoe sells its women's shoes under the brands Shoecolate and Pearlz. The shoe Shoecolate is offered in various colour combinations. Puma claims that Monshoe infringes its well-known formstrip trademark. Monshoe contradicts this and states that the average consumer will not perceive the device of Monshoe on the sneakers as a trademark. And if the public will recognize a trademark in the decoration, it will not make the connection to Puma. According to Monshoe, the formstrip logo is not a well-known trademark within the meaning of the BVIE and the UMVo. There is no likelihood of confusion because the sign does not or hardly evoke any association with Puma among the public. In light of the above, who is right? Does this constitute decorative use or linking to a well-known trademark?