German household gadget giant Kärcher has been successful in enforcing its trade mark for the colour zinc yellow against Italian company Lavor and its German subsidiary. Both companies offer high-pressure cleaning devices featuring the signature Kärcher colour. The case is particularly noteworthy because rightsholders can very rarely register a colour mark, let alone enforce (or try to enforce) one.
Kärcher has been a household name in high-pressure cleaning devices since it was founded 89 years ago. In 2005, it managed to successfully register its distinctive yellow colour as a trade mark in Germany on the basis of acquired distinctiveness for ‘motor-driven cleaning devices that work with a high-pressure water jet; the aforementioned devices for use outside the home’ in class 7. Lavor and its German subsidiary sold very similar looking goods to Kärcher.
A trade mark infringement claim was initially filed by Kärcher in the District Court of Hamburg, in which they were victorious. However, Lavor appealed to the Higher Regional Court of Hamburg, which subsequently dismissed the appeal, confirming there was a likelihood of confusion.
During the appeal, it was held that Kärcher had displayed genuine use of the mark, zinc yellow could be perceived as a source indicator, and the colours of the two ranges of products were considered to be highly similar and therefore there could be a likelihood of confusion.
If you have any questions on the above, please do not hesitate to contact the team at McDaniels Law on 0191 281 4000 or legal@mcdanielslaw.com.
