Decision 4 Ob 109/25w, 22 July 2025
The Austrian Supreme Court (OGH) dismissed an extraordinary appeal concerning the registration of a blue-green colour combination as an abstract trade mark for a wide range of goods and services (including fuels, retail services with regard to food and drinks, energy production, software development, and catering).
Key Issues
The applicant argued that the following colour combination
had become distinctive through use (“acquired distinctiveness”), relying on survey data showing that:
- 39% of the public know the sign in connection with petrol and gas companies;
- 74% of the public associate the colours with a specific provider in the context of petrol stations, and
- 59% assign the sign to the applicant’s corporate group.
Both the Patent Office and the Higher Regional Court (OLG Wien) rejected the application for lack of distinctiveness under § 4(1)(3) Austrian Trademarks Act (MSchG). The OGH confirmed these decisions.
Court’s Reasoning
The Supreme Court held that:
- Colours have inherently low distinctive character, as they are commonly used for aesthetic and marketing purposes and rarely convey clear source information.
- There is a strong need to keep colours and basic combinations free for general use, since too many registrations could deplete the limited range of available colours.
- Acquired distinctiveness (“Verkehrsgeltung”) must be proven independently of specific contexts, such as petrol stations in this case. It is not sufficient if consumers associate the colours with a brand only when used in a particular setting.
- A recognition rate of 59% was deemed insufficient given the high need for free availability (Freihaltebedürfnis) of common colours like blue and green.
The Court found no manifest error by the lower court and therefore rejected the appeal. It also noted that it was unnecessary to decide whether the colour mark was sufficiently precisely defined in its graphical representation.
Takeaway
The decision reinforces the strict standards for registering abstract colour marks in Austria. Even substantial consumer recognition may not suffice if:
- the colour combination consists of common, positively connoted colours like blue and green, and
- the claimed distinctiveness is limited to a particular marketing context.
Applicants seeking protection for colour marks must therefore provide clear evidence of independent source identification across all relevant goods and services.