In 1914, allegedly as a tribute to Queen Victoria, Cadbury introduced its distinctive purple packaging for chocolate bars.
Nearly 100 years later, the High Court has ruled in favour of Cadbury, granting it the right to prevent Nestlé and other chocolate makers using the colour Pantone 2865c on their products.
The judgment has followed a lengthy battle, instigated by Cadbury registering the colour as a trade mark in 2008. Nestlé opposed Cadbury’s initial application and challenged a trade mark ruling in 2011 which covered chocolate bars and drinks, arguing that a colour should not be protected.
However, Judge Colin Birss ruled this week that colours “are capable of being signs” and quite rightly that the specific shade of purple used by Cadbury has become distinctive of the company in relation to its products. This, combined with the comments of the registrar in the initial trade mark application by Cadbury, emphasises that an applicant who wishes to register a colour as a trade mark will need to prove that the colour has become distinctive of the goods or services it offers under the mark.
For the chocolate connoisseurs querying how Nestlé has been able to continue to sell the purple-wrapped brazil nut in chocolate in the “Quality Street” range, Cadbury’s registration of Pantone 2865c as a trade mark is for its specific shade, and it does not expressly cover chocolate cakes or assortments, arguably leaving other chocolate makers free to use other shades of purple on wrappers in a box of chocolates. Indeed, the judge confirmed that Cadbury’s trade mark specification for the colour should be registered only for “Milk chocolate in bar and tablet form; milk chocolate for eating; drinking chocolate; preparations for making drinking chocolate”.
Not only is the ruling of significant importance for Cadbury, it will also, no doubt, be fuelling the imagination of my creative colleagues behind the Clarion brand and, in particular, the now famous Clarion shade of purple for Clarion’s legal services.
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