Protecting a Colour as a Trademark: German Federal Court of Justice Denies Trademark Protection for the Colour Orange

German Federal Court of Justice (BGH), decision of 17 September 2026 – I ZB 58/25

Colours can have considerable economic value for companies. Some companies are recognised by their distinctive corporate colour, in some cases even before their company name or logo is noticed. It can therefore be attractive not only to use a particular colour as part of a corporate design, but also to protect it under trademark law.

However, protecting a colour as an abstract colour mark is subject to particular requirements, as demonstrated once again by a recent decision of the German Federal Court of Justice (Bundesgerichtshof, BGH). The BGH held that the colour orange could not claim trademark protection for the retail services of a DIY store chain concerned in the proceedings.

The decision is relevant not only to large retail companies. SMEs, manufacturers and start-ups should also assess at an early stage which elements of their brand identity can actually be protected and how a robust trademark strategy can be established.

What was the BGH decision about?

The proceedings concerned an abstract colour mark in the colour orange, filed in 2010 for retail services relating to building and DIY products.

The trademark had been registered by the German Patent and Trade Mark Office (DPMA). Among other things, the registration was based on a market survey intended to demonstrate so-called acquired distinctiveness of the colour as a trademark.

Other market participants, however, applied for the colour mark to be cancelled. Their main argument was that the colour did not have the distinctive character required for trademark protection. Consumers would not assume, based solely on the colour, that the relevant services originated from a particular company.

The German Patent and Trade Mark Office granted the applications for cancellation. The Federal Patent Court (Bundespatentgericht) also confirmed this assessment. Ultimately, the BGH had to determine whether the abstract colour orange could nevertheless qualify for trademark protection.

Why are colours particularly difficult to protect as trademarks?

Trademark law protects signs that can distinguish the goods or services of one company from those of other companies.

This is precisely where abstract colour marks face a particular difficulty.

Consumers often initially perceive a colour as a design element, for example as part of packaging, a store concept, a website or a corporate design. A single colour, however, is not automatically understood as an indication that a product or service originates from a specific company.

The BGH likewise assumes that abstract colour marks will often lack the required inherent distinctive character.

Under Section 8 (2) No. 1 of the German Trademark Act (Markengesetz), trademarks are excluded from registration if they lack any distinctive character in relation to the relevant goods or services. However, Section 8 (3) of the German Trademark Act provides an important exception: a sign may nevertheless qualify for protection if, as a result of its use, it has become established as a trademark among the relevant public.

Acquired Distinctiveness: When Does a Colour Become a Trademark?

For companies, this means that a colour can, in principle, be eligible for trademark protection. The crucial question, however, is whether a significant proportion of the relevant public understands the colour not merely as a design element, but as an indication of commercial origin of the goods or services marketed under that colour.

This was precisely the point that proved problematic in the case decided by the BGH.

According to the published information, a survey submitted in connection with the original registration found an attribution rate of well below 50 percent. It was also relevant that, at the time the trademark application was filed, several major companies in the relevant market segment were also using shades of orange or red.

Later surveys were likewise unable to establish the required acquired distinctiveness with sufficient certainty.

A survey conducted in 2020 found an attribution rate of 49.6 percent among the general population. This was contrasted with a survey submitted by the opposing party in 2021, which found an attribution rate of only 30 percent.

In the courts’ view, the resulting doubts could not be sufficiently dispelled. Neither the duration nor the extent of the use of the colour ultimately provided sufficiently reliable evidence of acquired distinctiveness.

The Consequence: A Well-Known Corporate Design Is Not Automatically a Protected Colour Mark

The decision highlights an important distinction between brand awareness and eligibility for trademark protection.

A particular colour can have significant recognition value for a company. It can form part of the company’s identity and be used intensively over many years in advertising, store design, packaging or digital media.

This does not, however, automatically mean that the company can monopolise the colour as an abstract trademark.

For trademark protection, it is particularly important whether the relevant public actually perceives the colour as an indication of origin and whether this can also be convincingly demonstrated in the event of a dispute.

The requirements can be particularly demanding in industries where certain colour schemes are commonly used.

What Does the BGH Decision Mean for SMEs and Start-ups?

The decision should not be understood as an argument against building a distinctive brand colour. On the contrary, a consistent corporate design can develop considerable economic value.

However, companies should ensure that their trademark strategy does not rely exclusively on a single design element.

1. Develop a Trademark Strategy at an Early Stage

Before introducing a new company name, logo, product or corporate design, companies should assess which elements can be protected under trademark law.

These may include, for example:

• Company and product names, including through the use of domains
• Word marks and slogans
• Word/device marks
• Logos and figurative marks
• Distinctive product identifiers
• Shape marks and position marks
• Where appropriate, colour marks
• Designs and other signs, such as colour combinations, sounds, haptics and scents

A coordinated IP portfolio can often be significantly more robust than focusing on a single form of protection.

2. Do Not Wait Until a Competitor Appears Before Thinking About Trademark Protection

Start-ups in particular often invest substantial amounts in branding, product development and marketing before checking whether the signs they use can be legally protected.

This can become problematic later.

As a brand becomes successful, competitors will generally become more interested in adopting similar names, product presentations or design elements. Without a protection strategy developed at an early stage, the ability to enforce one’s own rights may be limited.

Trademark protection should therefore be part of the company’s and product’s overall strategy, rather than becoming an issue only once a dispute with a competitor has already arisen.

3. Acquired Distinctiveness Must Be Demonstrable

The BGH decision also illustrates the importance that evidence can have in trademark law.

Anyone claiming that a sign that was originally non-distinctive has acquired distinctiveness through intensive use in the market must be able to provide convincing evidence of this in the event of a dispute.

Relevant factors may include:

• Duration of use
• Intensity and geographical scope of use
• Market shares
• Advertising expenditure
• Campaign reach
• Sales figures
• The manner in which the sign is used
• Market surveys

Particularly in the case of valuable trademark rights, companies should consider at an early stage how long-term use of the sign as a trademark can be documented.

4. Consider Colour Marks, Word Marks, Logos and Designs Together

For many companies, the better strategy is not necessarily to achieve the broadest possible protection for a single element.

Instead, a multi-level protection strategy may be appropriate.

For example, a company can protect its name as a word mark, combine it with a logo protected as a word/device mark, and additionally protect product designs under design law. Where the necessary level of recognition has been achieved, additional special types of trademarks may also be considered. Copyright law additionally provides protection by operation of law, without the need for registration, for so-called works of applied art, i.e. unusual product designs, logos, slogans and sounds created by humans.

The appropriate strategy depends on the business model, products, markets and specific design involved.

For manufacturers and technology-oriented companies in particular, other forms of protection such as designs, patents, utility models and the protection of know-how may also play an important role.

Understanding Trademark Law as a Business Asset

Trademarks are more than entries in a register. A strong brand can foster customer loyalty, protect market positions and increase the value of a company.

At the same time, valuable trademark rights do not arise merely because a sign is used extensively in marketing.

An effective IP strategy therefore combines, in particular:

Brand development → Assessment of protectability → Trademark application → Consistent use → Monitoring → Enforcement → Portfolio management.

The current BGH decision concerning the colour orange clearly demonstrates how important it is to make the right decisions at the beginning of this chain.

Trademark Advice from Specialist Lawyer Stephan Schneller

As a Specialist Lawyer for Intellectual Property Law, attorney Stephan Schneller provides comprehensive advice to companies on the development, registration, enforcement and defence of trademark rights.

The advisory services are aimed in particular at SMEs, start-ups, manufacturers, producers and marketing departments seeking to protect their brands and products strategically.

The services include, in particular:

• Assessment of the protectability of trademarks and other distinctive signs
• Development of an appropriate trademark and filing strategy
• German, European and international trademark applications
• Establishment and management of trademark portfolios
• Freedom to Operate searches and due diligence, including portfolio reviews
• Assessment of potential conflicts
• Opposition and cancellation proceedings
• Defence against attacks on existing trademarks
• Enforcement of trademark rights against competitors
• Drafting and review of licence, cooperation and development agreements
• Advice at the interfaces between trademark, design, copyright and unfair competition law

The focus is not solely on the individual trademark application. For companies, what matters is how their trademarks, products and other intellectual property rights can be protected effectively and economically in the long term.

Planning a New Brand, Product or Corporate Design?

Anyone investing significant resources in a new name, product, product line or corporate design should clarify as early as possible which elements can be legally protected.

An early assessment can help avoid costly disputes while also creating the conditions for effectively enforcing trademark rights against competitors at a later stage.

Stephan Schneller supports companies in developing an IP protection strategy tailored to their individual business model.

Have Your Trademark Strategy Reviewed Now

Are you developing a new brand, looking to review an existing trademark portfolio, or unsure whether a name, logo, design or distinctive identifier is sufficiently protected?

Contact attorney Stephan Schneller. Together, you can assess which IP rights make sense for your company and how your brand assets can be protected, defended and commercially leveraged over the long term.