Have you ever seen this colour in connection with financial institutions, or does it appear familiar in this context? Or have you never encountered this colour in connection with financial institutions?According to the BGH, this question was suggestive, as it already created a link to a certain kind of companies, namely financial institutions. It already introduced the key question - whether the sign was understood as reference to a single entity - into the first question, which should only filter for persons that have never encountered the sign (para. 43). The proper way was to ask whether the respondents had seen the colour in connection with the claimed products.
|Too much paper...|
Another flaw of the Pflüger survey - which equally applies to the IPSOS survey - was that the first question asked "Have you ever seen this colour in connection with financial services [as listed] or does it appear familiar in this context? Or have you never encountered this colour in this context?" According to the Court, the part of the question here put in italics is impermissible, as it leads respondents to consider a third answer, other than yes or no, to the question. It was fine to count those who spontaneously answered that the colour appeared familiar among those who know the sign, but "looks familiar" must not be an explicit option, as it leads to inflated figures (para. 72. In the case at hand, only about 17% of respondents spontaneously answer that the colour seems familiar, but 24% if explicitly given the option).
In connection with financial services...
- the colour refers to ("hinweisen") a specific financial institution (63%)
- the colour refers to several financial institutions (8%)
- the colour does not refer to any financial institution (4%)
- cannot answer (6%)
This question was appropriate (para. 79). 62% of respondents named a company of the trade mark owner's group in answer to the third question "Do you know the name of this financial instution?".