Litigation on Packaging Patents
Blue is also the bone of contention between pharmaceutical groups Beiersdorf and Unilever. In the litigation between the 'Nivea' and 'Dove' brands on a particular shade of blue the firms have now even turned to the German Constitutional Court. This court case dealing with the product design of the internationally renowned enterprises has already been pending since 2007. Although Beiersdorf had obtained a patent for the shade of blue used for its Nivea series of products, Unilever opted for exactly the same blue shade for its Dove packaging design. Roughly two years ago the colour trademark was even deleted by the Federal Patent Office.
A similar case is currently pending before the European Court of Justice, which is why there is no precedence case yet for the judges to refer to. There seems to be unanimity about the importance of the consumers’ view: if, on the grounds of colour alone, packaging is associated with a specific brand, the brand owner may insist on his exclusive right of use. This is not the case though if the logo also serves for recognition purposes. The decision whether the two brands will in future share the same shade of blue now lies in the hands of the Karlsruhe judges.