You are using an older browser version. Please use a supported version for the best MSN experience.

Money Top Stories

Cadbury just lost a trademark battle over a shade of purple, and its distinctive colour is now vulnerable

The i logo The i 6 days ago Josh Barrie
© Getty

A special message from MSN:

While Christmas is a time of joy for most of us, that's not the case for the UK's most vulnerable children and young people. We've partnered with giving platform Benevity to raise funds for two charities - the NSPCC and The Children's Society – to try to help change that. You can help make a difference - please donate now.

The Court of Appeal has ruled against Cadbury, which tried to trademark a shade of purple.

The chocolate company was attempting to update an existing trademark so that it would encompass a wider range of confectionery.

a house that has a sign on the side of a building © Provided by Johnston Publishing Ltd

Court of Appeal

In 1995, Cadbury trademarked the shade Pantone 2685C. This still stands, and it includes chocolate bars and tablets. The distinctive shade of purple is world famous.

But the company's more recent attempt to trademark the shade so that it "applied to the whole visible surface, or being the predominant colour applied to the whole visible surface, of the packaging of the goods" was rejected as it wasn't clear enough.

In other words, it appears Cadbury wanted to trademark the colour purple in any form, whether a minor part of packaging or major, and wanted to be able to have a monopoly on the shade with all products, including the likes of cakes, drinks, and sweets other than chocolate bars.

On Wednesday, Cadbury lost its battle following a complaint raised by rival Nestle.

© Provided by Johnston Publishing Ltd

Pantone 2685C

In his judgement, Lord Justice Floyd said: "If allowed to be the predominant colour rather than restricted to the whole surface, the registration could cover uses of purple in extravagantly different ways the mark could appear as stripes, spots, a large central blob, or in any other form."

Lord Justice Floyd said it would not satisfy a requirement that marks must resemble each other and only differ in non-distinctive ways.

A spokesperson for Mondelez International, which owns Cadbury, said: "We are disappointed with this decision."

"Our iconic colour purple has been used for Cadbury chocolate products for more than a century and is synonymous with the brand."

"We will continue to protect what we believe is a distinctive trademark and challenge those who attempt to pass off their products as Cadbury chocolate by using this colour."

Vulnerable

The decision leaves Cadbury vulnerable. Rebecca Anderson-Smith, trademark attorney at law firm Mewburn Ellis, said: "This decision is a significant blow to Cadbury as it means the wording ‘being the predominant colour applied to the whole visible surface’, previously considered too broad by the Court of Appeal, has to remain in their registration.

"This leaves the registration open to attack by Nestle and other third parties for being invalidly registered."

Ms Anderson-Smith explained Cadbury still has its trademark for Pantone 2685C when used as the "predominant colour applied to the whole visible surface," but in no other form.

But Nestle, after winning the first fight, may now attack the registration and leave Cadbury open to imitations. There would still be grounds to defend its brand using goodwill and the passing off law, but this is weaker.

© Getty

Nestlé

Sharon Daboul, chartered trademark attorney at law firm Harbottle & Lewis, said: "This is the latest decision in a long-running battle between Cadbury and Nestlé over the registration of non-traditional trade marks."

"It will be a blow for Cadbury with its oldest UK colour registration now being vulnerable."

“There’s a risk that Cadbury’s purple trademark will not be found to be sufficiently precise as the description could indicate that more than one sign is covered by the mark."

"Competitors such as Nestlé may now be considering their options in terms of cancelling the registration altogether."

Related: The 15 best UK companies to work for when it comes to work-life balance (Cosmopolitan UK)

AdChoices
AdChoices

More from The i

image beaconimage beaconimage beacon