For many, a milk chocolate bar in purple packaging conjures up just one image: Cadbury.
Since 1995 Cadbury have had registered trade mark protection for the colour purple – pantone shade 2685C to be precise, most notably used on their Dairy Milk chocolate bar. That is, until now.
The 1995 trade mark registration covered the colour’s use on the whole or a predominant part of the packaging of chocolate in bar form only. In 2004, Cadbury looked to develop their range. They sought to register an additional colour mark, with the same purple colour and description but in respect of a much wider specification. This was met with fierce opposition from rivals Nestlé.
In 2013, Nestlé succeeded in the Court of Appeal. It was held that Cadbury’s description of the purple colour mark was too broad. The registration failed, lacking precision and clarity in respect of the monopoly sought by Cadbury.
Cadbury, realising they’d exposed themselves to challenges of invalidity, then sought to remove the “predominant part of the packaging” wording from the 1995 mark. The company tried to claim the 1995 registration was in fact a series of two marks, with the colour either on all of the packaging, or on a predominant part of the packaging.
In December 2018, this argument failed. The Court of Appeal said the mark description constituted a range of options relating to the use of purple on Cadbury’s chocolate bar packaging. Cadbury filed one mark, and not a series of marks. If Cadbury intended to register the mark as a series they would and should have done so.
In February 2019, Cadbury had to accept defeat. It’s now left with a very limited and partially invalid trade mark registration in relation to the shade of purple the company has fought so long and hard to protect.
Regardless of the Court of Appeal outcome, this doesn’t open the door for other businesses to use the shade of purple which we’re all familiar with as the Cadbury Dairy Milk purple whenever and however they want.
Cadbury has developed a great deal of goodwill and distinctiveness in its use of that shade of purple in relation to chocolate. The loss of its trade mark registration doesn’t give other businesses free rein to use that colour in relation to chocolate and other related products, in circumstances and in a manner which is likely to make consumers believe Cadbury is responsible for those products.
Any misrepresentative use of the colour purple in that context would amount to passing-off in the UK. It’d also very likely breach unfair competition laws in other jurisdictions where Cadbury has established purple as a distinctive identifier of its products.
So while Cadbury have seemingly had a bad run with the justice system, it’s not over yet. It remains to be seen whether Cadbury will make any further attempts to register the colour purple with a narrower description – or whether anyone else will be brazen enough to attempt to use the colour.
For now, though, as a nation of chocolate lovers, we’ll more than likely assist Cadbury in meeting the bar for a passing-off claim if its competitors push their luck too far.
Our experts regularly advise manufacturers on trade mark law – get in touch now to find out how they can help you.
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