Red Circle
Stays a
trademark.
Red Circle
Stays a
trademark.
of
Does a color figurative mark have to specify its shade using a color code in order to be valid? And what applies if the red in the 1996 application is different from the red in the current register? The Federal Court of Justice answered both questions in favor of the trademark owner.
A Sticker Circle from 1996
On March 4, 1996, a company filed an application for a figurative mark with the German Patent and Trademark Office (DPMA). It depicts a red circle on a white background. Protection was sought for thermos containers, specifically thermos bottles, thermos pitchers, and thermos food containers. It was registered on August 7, 1996.
The registration process was incredibly simple. The form listed only the word “red” as the color specification. Attached was a sheet of paper with a red circle glued to it, as well as other illustrations in shades of red, some of which differed. The application did not contain a color code—that is, a reference number from a recognized color system.
On October 16, 2018, another company filed a request to cancel the trademark. The DPMA rejected the request. The Federal Patent Court upheld this decision in its ruling of July 1, 2025—Case No. 26 W (pat) 70/20— and granted leave to appeal to the Federal Court of Justice.
Which shade of red is protected?
The applicant company challenged the trademark before the Federal Court of Justice on only one ground: that it could not be depicted with sufficient clarity. Until January 13, 2019, the old Trademark Act required that a trademark be capable of being graphically represented. This means that anyone can determine from the register exactly what is protected.
The applicant considered the shade of red to be indefinite. The application merely specified “red”; the illustrations were not identical in color, and the registered red differed from the color applied for. Furthermore, a color sample on paper could fade. In the case of a simple red circle, it is precisely the color that defines the trademark, which is why a color code is indispensable.
The Federal Court of Justice (BGH) dismisses the appeal.
In its decision dated September 3, 2026—Case No. I ZB 104/25— the Federal Court of Justice dismissed the appeal at the petitioner’s expense. The trademark remains registered. The cancellation proceedings are thus concluded at all levels of the court system.
Why does the registry matter, and not the application?
In cancellation proceedings, the court holds that what matters is the design as recorded in the register, not the application documents. The register is public and is intended to show all market participants which trademarks exist and the extent of their protection. If one had to rely on the application in the event of discrepancies, no one would be able to obtain definitive information based solely on the register.
Whether the red in the application differs from that in the registry is therefore irrelevant. Nor does the fading of the paper matter. The Federal Patent Court had determined that the trademark is stored in the registry as a permanently saved electronic file. This file permanently records the shade of red.
Does a color figurative mark require a color code?
The Federal Court of Justice considers a color code unnecessary if the register reproduces the shade of color unambiguously and permanently by other means.
A registered color figurative mark shall not be canceled on the grounds of a lack of graphic representability if its color shade is reproduced clearly and consistently in the register (in this case, in the form of an electronic file).
The applicant had relied on the case law of the ECJ regarding the color orange (ECJ judgment of May 6, 2003—Case C-104/01, Libertel). According to that case law, in the case of an abstract color trademark—that is, the protection of a color without a specific shape—a color sample on paper alone is not sufficient. A precise description or an internationally recognized color code is required in such cases. The Federal Court of Justice views the case differently. It held that this case involved a figurative mark with a fixed form, the color of which was stored in an electronic file. It did not consider it necessary to refer the matter to the European Court of Justice.
The extent to which the color red defines the trademark is not a matter of representability. At most, this concerns distinctiveness—that is, the sign’s ability to identify a specific company—or the scope of protection in an infringement lawsuit.
Conclusion
The decision provides legal certainty under trademark law for numerous earlier figurative trademarks that were still filed on paper. It is favorable for trademark owners but unfavorable for competitors seeking to challenge such trademarks.
Since January 14, 2019, the Trademark Act has required that the subject matter of protection be clearly and unambiguously identifiable, rather than merely graphically representable. In the court’s view, the two criteria are essentially equivalent, so these considerations are likely to be relevant under current law as well.
We view it as problematic that the scope of protection ultimately depends on the Office’s digitization process. The trademark owner had only specified “red” and submitted inconsistent samples. Which shade of red is protected is determined only by a file, the creation of which the decision does not elaborate on. Furthermore, the same data value appears differently on various screens and in print. The decision leaves open the question of whether market participants can actually identify a precise shade of color from this in everyday practice.
It also remains unclear whether the red circle is even distinctive for thermos containers. This issue was not at the heart of the appeal proceedings.
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