Stripe patterns
are not a
trademark.
Stripe patterns
are not a
trademark.
of
A striped pattern in bright yellow and silver-gray appears thousands of times on high-visibility clothing. Can it still be protected as a trademark? The Federal Patent Court ruled against this in two identical decisions and rejected two figurative marks for protective equipment, technical materials, and textiles.
Two figurative marks, one striped pattern
On June 28, 2018, an applicant filed two applications for figurative marks with the German Patent and Trademark Office. Both feature a pattern consisting of five horizontal stripes of equal width in bright yellow and silver-gray.
Both applications covered goods in Class 9, including protective and safety equipment, protective clothing, head protection, and fire-resistant clothing, as well as goods in Class 17, such as seals, adhesive tapes, and reflective strips for safety vests; and Class 24, which includes textiles and flame-retardant and fire-resistant fabrics.
The DPMA’s Trademark Division for Class 24 rejected both applications in a decision dated August 4, 2020. It justified this on the grounds that the design merely represented a typical depiction of a signal stripe, as is generally common in the field of protective equipment. The applicant filed an appeal against both decisions with the Federal Patent Court.
The applicant’s arguments
The applicant considered the rejection to be unfounded. She argued that the claimed combination of five strips of equal width—in which two silver-gray strips are framed by three bright yellow strips—could not simply be deemed to lack any distinctive character. In particular, no specific technical effect could be attributed to this particular arrangement.
In addition, she cited three earlier registered trademarks featuring a similar design consisting of three stripes, including a color trademark without outlines. These earlier registrations, she argued, were an indication that such designs were indeed used by competitors as an indication of origin.
The Federal Patent Court dismisses both appeals
The Federal Patent Court dismissed both appeals with identical reasoning in its decisions dated July 21, 2026 (Case No. 26 W (pat) 590/20 and Case No. 26 W (pat) 587/20).
Both applications lack any distinctiveness within the meaning of the Trademark Act with respect to all the goods claimed. This provision requires that a trademark be capable of being perceived by the relevant public as an indication of commercial origin, and not merely as a descriptive or decorative element.
Why Yellow and Silver-Gray Are Considered Warning Colors
The Federal Patent Court (BPatG) bases its decision primarily on the significance of the colors used. The color yellow has a strong signaling effect, which can be attributed primarily to its function as a warning color in nature. Depending on the shade, specific standard meanings are also assigned to it, such as signal yellow (RAL 1003) for warning signs or traffic yellow (RAL 1023).
In contrast, while the color silver does not have a distinct signaling meaning of its own, it does provide high contrast in the dark, as illuminated silver stripes reflect light in a directed manner. The combination of yellow and silver-gray is widely used in protective clothing and is based on the EN ISO 20471 standard for high-visibility safety clothing, which has specified the requirements for a bright background color in combination with reflective stripes since 2013.
To support its ruling, the court cited a large number of specific product examples from the market, including high-visibility caps, firefighter uniforms, high-visibility pants, and high-visibility vests, as well as backpacks designed in the same style, all of which consistently feature this color combination.
In an arrangement of five stripes of equal size, drivers do not perceive it as an indication of the vehicle’s company affiliation, because the greater number of stripes actually serves a stronger protective and warning function and thus simply means “more” attention.
A large number of stripes is not intended as a distinctive design feature, but rather to reinforce the warning function that is already present.
Why the specific arrangement of the stripes makes no difference
The applicant had argued that it was precisely the specific arrangement of five stripes with precisely defined width ratios that gave the mark its distinctiveness. The judges did not agree with this argument. The variety of possible combinations of warning stripes—for example, in terms of size, number, and order—is so vast on the market that the specific arrangement of five horizontal, alternating-colored stripes is not distinctive.
Nor does the rectangular basic shape of the mark applied for alter this conclusion. Very simple figurative and graphic design elements lack distinctiveness in and of themselves. With regard to the trademark featuring the additional woven texture, the court further concludes that even this impression of a textile pattern does not give the relevant public any reason to perceive the trademark as an indication of commercial origin.
Why the earlier entries didn’t help
The applicant had cited three earlier registered trademarks that feature a similar pattern, albeit one consisting of three stripes. The court did not accept this argument. There was no basis for taking prior registrations by third parties into account. No further conclusions for the assessment of the specific application under review could be drawn from unmotivated registration decisions regarding other trademarks.
The Senate thus adheres to the established principle that each trademark application must be assessed on its own merits. Earlier registrations that were not substantiated in detail are not binding on subsequent proceedings, even if the designs in question are similar to one another.
How the decisions fit into existing practice
These decisions are part of a series of rulings that are increasingly addressing the registrability of product-related designs and patterns. An earlier post also dealt with a design that was too similar to a purely decorative or functional design. In the EUIPO’s decision regarding Philips’ handle design, a dot pattern on a razor handle was rejected for similar reasons, as consumers viewed it merely as a decoration of the handle area. Similarly, in the case of the disposable syringe by B. Braun, which was filed as a 3D trademark, a design detail that differed from that of competitors was not sufficient to confer the necessary distinctiveness on the trademark.
These cases reveal a recurring pattern in the assessment of figurative marks and other product-related designs. The closer a mark is to a design that is customary in the industry—whether functional or decorative—the higher the requirements for a recognizable deviation from that standard. According to the case law of the European Court of Justice cited by the Senate regarding the so-called “Birkenstock sole,” this applies explicitly and equally to all categories of trademarks, regardless of whether they are figurative marks, color marks, or three-dimensional marks.
Well-known examples such as Burberry’s check pattern or Louis Vuitton’s monogram pattern demonstrate that genuine pattern trademarks can indeed be eligible for protection. The key difference lies in the fact that such designs serve no recognizable function beyond identification, whereas, in the Board’s view, the striped design applied for here is inextricably linked to the warning function of the goods covered by the trademark.
Conclusion
The outcome of these two rulings comes as no surprise. Case law has already applied a strict standard to designs that are primarily perceived as warning or safety signs in traffic.
The question remains as to where, in individual cases, the line is drawn between a design that is merely a warning and one that is truly distinctive. The Senate focuses primarily on the multitude of possible stripe arrangements, without, however, specifying clear criteria as to the degree of individualization at which a design might cross this threshold. For companies outside the safety and high-visibility sector that wish to use eye-catching but non-warning stripe patterns, a certain degree of legal uncertainty therefore remains regarding the scope for design that is actually available to them.
Anyone who wishes to protect an industry-specific design under trademark law should therefore develop a realistic application strategy early on, rather than relying on an obvious design.
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