The German Federal Court of Justice (the Court) has recently returned the trade mark cancellation of Nivea maker, Beisersdorf's ('Nivea') colour blue (known as "Pantone 280 c"), to the Federal Patent Court for re-trial.

According to the Court, the survey evidence relied on had not been properly collated by Nivea or correctly interpreted by the Federal Patent Court, when seeking to determine the public's awareness of the colour blue as a branch mark for Nivea. In particular, the Court considered that there would be sufficient recognition and market penetration if only 50% of the surveyed public recognised the blue colour as Nivea's trade mark. This lowered the previous 75% threshold required by the Federal Patent Court.

Both parties are apparently confident that the re-trial will prove successful for them.

Unilever's view appears to be that, once conducted correctly, the survey evidence will demonstrate that the trade mark application covers too wide a spectrum of products and should be narrowed.

However, Nivea's view is that the survey would again show a significant association between the colour and brand and therefore the lower 50% threshold would be more easily met. The date of re-trial has not been yet published but will be watched closely as it will provide a further example of how the European courts interpret survey evidence in intellectual property cases.  For Nivea and Unilever, this should mark the final battle in an 8 year campaign.