The Trademark Lawyer: Dr. Eckhart Ratjen on the enforcement of non‑traditional trade marks in Germany
In Issue 2/2026 of The Trademark Lawyer, Dr. Eckhard Ratjen, LL.M. (London), partner at BOEHMERT & BOEHMERT and attorney at law, examines the challenges involved in enforcing non‑traditional trade marks in Germany. Under the title “Litigating non-traditional trademarks in Germany: why market context matters for color and shape marks”, his article addresses the question under which conditions color and shape marks are recognized as indicators of commercial origin in trade mark infringement proceedings. Rights holders continue to face heightened hurdles in this area, as courts often view colors and product shapes as merely decorative or functional elements.
Non‑traditional trademarks in the focus of recent case law
The analysis is based on the traditionally cautious approach taken by German courts toward non‑traditional trade marks. While trademark use is generally straightforward in the case of word and figurative marks, color and shape marks regularly require a closer examination as to whether the relevant public actually perceives the sign as indicating commercial origin.
Drawing on recent decisions of the Higher Regional Courts of Hamburg and Düsseldorf, the article demonstrates that enforcement is nevertheless possible. A careful assessment of the specific market environment in which the sign is used is always decisive. Relevant factors include industry‑specific labeling practices, the level of recognition of the sign, and the composition of the relevant public.
Market context and perception of the relevant public as decisive criteria
Referring to the decisions of the Higher Regional Courts of Hamburg (“Zinc Yellow”) and Düsseldorf (“Smiley”), Dr. Eckhart Ratjen, an attorney at law specializing in trade mark law at BOEHMERT & BOEHMERT in Bremen, shows that color and shape marks can, under certain conditions, be successfully enforced in Germany. The decisive question is whether the sign clearly stands out in the relevant market and is perceived by the addressed public as an indicator of origin.
Particular importance is attributed to the specific context of use, industry‑typical marking habits, and the composition of the relevant public. Depending on the market, the perception of general consumers or that of specialized professional circles may be decisive — an aspect that is of central importance in trade mark litigation.
The article also highlights the role of well‑substantiated evidence, such as consumer surveys, market studies, or proof of brand recognition. It becomes clear that, in the enforcement of non‑traditional trade marks under German trade mark law, success depends less on abstract protectability and more on the concrete market situation.