After running approximately 10 years, Unilever PLC as the party who filed an invalidation lawsuit against the trademark “Nivea Blue Color Pantone 280 C” in the name of Beiersdorf AG decided to stop and withdraw the said invalidation lawsuit. This withdrawal of invalidation lawsuit shows that Beiersdorf AG as the proprietor of registered trademark still has an exclusive right of trademark Nivea Blue Color.
This conflict started when Unilever PLC objected the registration of “Nivea Blue Color Pantone 280 C” which was legally protected and registered as an abstract color trademark by the Germany Trademark and Patent Office since 2007, in Unilever opinion, the said blue color should not be registered as a trademark because of not having differentiating element.
Actually the trademark issue of “Nivea Blue Color Pantone 280 C” is not the first abstract trademark issue in Germany. There was similar case which had been rolled in few years ago, and then it shows that the ownership of the color trademark is still in gray area.
In Germany, a color is allowed to be registered as an abstract trademark if public as consumers have been always correlating the said color with the products. Therefore, in this trademark invalidation case of “Nivea Blue Color Pantone 280”, Beiersdorf AG conducted a market survey to consumers, and successfully confirmed the said trademark registration by public or consumers acceptance. It means consumers have been aware and always correlate the said blue color with Nivea products.
Correlating to the trademark protection in Indonesia, up to this present time a trademark application for single color has not been able to be registered yet in Indonesia. Because the trademark application for single color seems not having sufficient differentiating element as asserted in Article 20 letter e of Indonesian Trademark and Geographical Law No. 20 of 2016 “A Mark cannot be Registered if it does not have a differentiating element”. Therefore, for any parties who would like to have a trademark application in Indonesia, it is highly advisable to combine the trademark color with numbers, letters, words, and/or picture (logo) or color arrangement as differentiating elements. It is also asserted in the Article 2 Paragraph 3 of the Indonesian Trademark and Geographical Indication Law No. 20 of 2016, “Protected Mark consists of sign in the form of picture, logo, name, wording, letter, number, compositions of colors, in 2 (two) dimensional form and/or 3 (three dimensional form, voice, hologram, or combination from 2 (two) or more of such elements in order to distinguish products and/or services produced by an individual or legal entity in the trading of goods and/or services activities”.