Federal Court of Justice Confirms Lack of Distinctiveness of an Abstract Color Trademark

The decision concerns one of Germany’s best-known color trademarks: the distinctive OBI orange, which has been used for many years as the signature color of the DIY market. The Federal Court of Justice has now clarified that this color cannot be legally protected as a trademark.

In its ruling of September 17, 2026 (I ZB 58/25), the Federal Court of Justice confirmed that the contested abstract color trademark lacks the required distinctiveness and is, therefore, ineligible for registration. According to established law practice, abstract color trademarks generally lack genuine distinctiveness, as consumers do not typically infer a product’s or service’s commercial origin from the mere color of the product or service. In the present case, no special circumstances were apparent, either, that could justify a different assessment. In particular, the relevant public is not accustomed to perceiving colors as means of identification for retail services in the field of construction and home improvement supplies.

The court further found that the ground for refusal, based on a lack of genuine distinctiveness, had not been overcome by acquired distinctiveness pursuant to Section 8(3) of the German Trademark Act (MarkenG). The Federal Patent Court had already concluded that the trademark had not acquired distinctiveness through use at the time of its application in 2010. The opinion poll results of 2012, submitted during the registration proceedings, showed only an attribution rate of 45.6% among the general population—a figure insufficient to establish acquired distinctiveness. Since construction and home improvement products are mass-market goods, the general population constitutes the relevant public. Nor could the trademark owner’s additional information regarding the duration and scope of the trademark’s use at that time compensate for the lack of acquired distinctiveness.

With regard to the date of the oral hearing in January 2025, the Federal Patent Court likewise concluded that acquired distinctiveness could not be established with the required degree of certainty. The survey of 2020, submitted by the trademark owner and showing an attribution rate of 49.6%, was not deemed sufficient evidence by the court. The petitioners had submitted their own survey of 2021, which yielded an attribution rate of only 30%. The Federal Patent Court saw no indication that this significantly lower figure could be attributed to methodical flaws. Nor were the additionally presented circumstances regarding the use of the trademark sufficient to dispel the existing doubts. It was, therefore, not necessary to obtain a judicial opinion poll ex officio.

With its decision, the Federal Court of Justice confirms the Federal Patent Court’s assessment in all essential points: The contested color trademark possesses neither genuine distinctiveness nor distinctiveness acquired through use and is, therefore, not eligible for registration.