John Deere had registered the colour combination green-yellow for agricultural machines as a CTM based on acquired distinctiveness. The image on the right, submitted with the application, shows how the colours are used. An Italian competitor, BCS Spa, filed for nullity based on several grounds, most importantly that the colours had not been used "as a trade mark" and that the evidence submitted did not show that distinctiveness had been acquired in all member states of the EU, as required by the case law.

The nullity claim was dismissed by all instances. In the case at hand, trade associations had issued statements that the colour combination was perceived as an indication of source, and John Deere had used the same colours consistently for a long time. This indicated that the coulours were indeed used "as a trade mark", notwithstanding the fact that they were used in combination with other (word) marks.

While it was correct that the acquired distinctiveness had to be shown in the entire territory of the EU (para. 39), this did not mean that survey evidence had to be submitted for each and every member state. It is permissible to deduce acquired distinctiveness from secondary evidence such as market share, revenue and advertising expenditure (para. 41). John Deere had submitted such data for all member states. In case of relatively expensive, long lasting investment goods such as tractors etc. offered by John Deere, a comparatively lower market share may be sufficient to establish acquired distinctiveness if the trade mark has been used for a long time and consistently - here, at least 50 years in some of the member states (para. 43-44).

Decision T‑137/08 of 28 October 2009 here (in German)