Innovative, non-traditional trademarks: “Red Shoes”

An important new feature to create uniqueness in the field of corporate identity and corporate design

Our firm has recently managed to obtain a graphically non-representable trademark called “Other trademark” (Sonstige Marke) registered at the German Patent and Trade Mark Office, which we would like to call avantgarde: The special thing about this so-called other trademark is that it is neither a word mark, nor a figurative mark, three-dimensional mark, position mark, sound mark or smell mark.

The trademark consists of

“the use of red shoes that the employees of the trademark owner wear during sales, rental- contract and consulting talks in connection with vehicles, especially motorhomes and caravans ”.

The trademark claims protection in class 12 for “vehicles, especially motorhomes and caravans, …”, in class 35 for “retail and wholesale services related to motorhomes and caravans” and in class 39 for “rental of motorhomes and caravans”.

The reason for the registration was that our client is active in the sale and rental of motorhomes and caravans and that his employees always wear red shoes during business hours in their sales shop or at trade fairs. We were asked whether this characteristic can be protected as a trademark. After the Trademark Law Modernization Act in 2019 opened the trademark law to new and innovative graphically non-representable “other trademarks”, we deemed the chances of registration to be reasonable.

To the best of our knowledge, this is the first trademark of this type to be registered in Germany without the need to evidence acquired distinctiveness.

This is particularly positive because the European Trademark Office (EUIPO) and –  to our knowledge –  other EU member countries have not yet registered comparable trademarks. The registration confirms the Office’s willingness to be innovative and underlines its readiness to meet the needs of business. However, going forward we would expect that the Office’s stance might be somewhat less lenient and that it would require for the subject trademark that the colour red shall be specified by indicating the red tone (e.g. with RAL numbers) and that the kind of shoe is specified such as “sneakers, sporting shoes”.

Markus Müller