In 2008, Cadbury applied to trademark the purple colour, Pantone 2865c, in a number of categories but Nestlé challenged the registration claiming it “lacked distinctive character”.
A preliminary ruling by the Intellectual Property Office (IPO) stated that Cadbury could trademark the colour for packaging its chocolate in bar and tablet form as well as eating and drinking chocolate. A spokesperson from Cadbury said its use of the colour purple was “vital” to the brand in the competitive impulse purchase market. He added: “Any marketer will understand that you zealously guard your icons and none more so than colour.”
Fiona McBride, partner and trademark attorney at law firm Withers & Rogers, said “Colour registrations are notoriously difficult to obtain, largely because it can be difficult to prove sufficient use to demonstrate that the colour has become synonymous with the brand in the mind of the consumer. Brand owners should definitely continue to consider registering a colour for trade mark protection where they believe that it has become a powerful and distinctive part of their brand.”
On October 1st, 2012 Cadbury won the right to prevent other chocolate makers using its shade of purple in their packaging, heading off a legal challenge from rival Nestlé. High Court judge Colin Briss ruled that colours were capable of being signs and that “the evidence clearly supports a finding that purple is distinctive of Cadbury for milk chocolate”. However, the ruling did not extend to Cadbury’s boxes of chocolates, or dark or white chocolate, as the judge ruled that the colour was not distinctive to chocolate in general.
The IPO agreed that Cadbury showed significant evidence of using the colour on a long-term basis as it had been employed since 1914 but the colour trademark could not cover chocolate cakes, assortments or confectionery. This meant Nestlé was able to continue using the colour on its Quality Street product.
