The German Federal Patent Court decided that the fact that a car wash is depicted in color does not, as a rule, confer the necessary distinctive character on a corresponding figurative mark (BPatG, decision of March 10, 2021, 28 W (pat) 83/20 – Autowaschanlage).
The figurative mark in dispute, No. 30 2017 011 726,
had been filed and registered in 2017 for, among other things, car wash facilities. In August 2020, the GPTO granted an application for cancellation filed against this mark in 2018 on the grounds that both the depiction of the car wash facility as such and also the color shown did not deviate significantly from the norms or customs of the respective market sector and would therefore not be recognized by consumers as an indication of origin. The Court confirmed the decision of the GPTO, since house colors are not established in the car wash sector. From the fact that the consumer associates certain colors with some large service station companies, it could not be concluded that every color design of car wash facilities was regarded as an indication of origin rather than a merely decorative element.
From the point of view of the applicants, this decision is of course regrettable, since colors are perceived from a distance and thus have a clear recognition value for the consumer even at a great distance. From the point of view of competitors, on the other hand, the decision is clearly to be welcomed. Considering that colors are only available to a limited extent and that a nuance in light or dark colors will hardly be sufficient to exclude any similarity of signs and thus to exclude any likelihood of confusion, a monopolization of colors needs to be well considered, even if the protection of a color as such was not sought here, but only together with the representation of a car wash (which. However, did not deviate from what is customary in the industry).
