US Publishers Loses Claim To Yellow In Court

A German court has ruled that the color yellow can be protected as a trademark. But it must be widely associated with a specific company. The case highlights just how important color alone can be for company branding.

Germany's top administrative court on Thursday rejected a claim by US software publisher Rosetta Stone to veto dictionary publisher Langenscheidt's exclusive registration of the color yellow as a trademark. Langenscheidt is a Munich-based publisher of yellow-bound bilingual dictionaries and other language-learning aids used by students of German in many nations.



Rosetta Stone, which sells language-learning software in yellow cartons, was appealing an earlier verdict banning it from using yellow. Germany's federal high court has ruled last year that confused buyers wanting Langenscheidt products, might accidentally purchase Rosetta Stone's yellow bound products believing they were getting Langenscheidt.



Hearing arguments by lawyers at the Federal Court of Justice, judge Wolfgang Büscher said a merchant can only register a color as a trademark if the product has a large market share, a long history of sale and a public perception linking that colour to that product. On that basis he ruled the US company must stop using the color yellow for its dictionaries.



Clashing colors



The case revolves around the limited number of colors available compared to the range of words and images for marketing purposes. While words and images are almost limitless in number, variation and combination, many shades of color are virtually indistinguishable under everyday circumstances by the human eye.



Thursday's verdict echoes a European Court of Justice verdict earlier this year. Using the same argumentation as Büscher on Thursday, it ruled that Spanish bank Santander must stop using red for its marketing in Germany. The case was brought by Germany's Sparkasse, whose 400 branches are an easily recognised brand decorated in their fire engine red. Sparkasse's and Santander's reds can only be distinguished technically. But in Germany the red in question is colloqiually known as "Sparkasse red'."



That case is still making its way through the German courts. Sparkasse brought it when Santander began to expand its German operations. It remains to be seen if Thursday's verdict, which is final in the Langenscheidt-Rosetta Stone case, will also apply to the two banks.



bew/hg (dpa)