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Intellectual Property Disputes.

July 4, 2014

Cadbury the confectionery company previously won a historical victory in the Intellectual Property Office which allowed them to trademark the colour purple. The Registrar ruled that Cadbury’s goods demonstrated their necessary “distinctive character” to qualify for the protection of a trademark.

Cadbury was initially granted the trademark for Pantone 2865c in 2008. The grant was for use in its chocolate bars and other chocolate products. Nestlé challenged the ruling arguing that the colour was not distinctive enough to receive a trademark. That challenge failed after the Registrar of the UK Intellectual Property Office ruled in Cadburys favour.

In his ruling, Allan James, Registrar said

“Subject to an Appeal, the mark will be registered for chocolate in bar and tablet form; eating chocolates; drinking chocolates and preparations for making drinking chocolate.”

Mr. James did find in Nestlé’s favour in relation to Cadbury’s cakes, boxed chocolates and other Cadbury confectionary by deciding that the association of such products with the Cadbury brand was not as well established in the minds of consumers.

The case didn’t give Cadbury’s the right over the colour purple in general but specifically Pantone 2865c.

Nestlé then appealed the decision and the case came before Judge Birss QC in May 2012.
The Judge ruled that colours are “capable of being signs” and determined that the famous  “Cadbury purple” had become linked with the Birmingham-based company’s chocolate for more than 90 years.

“The evidence clearly supports a finding that purple is distinctive of Cadbury for milk chocolate.”

The Court of Appeal then upheld Nestlé’s opposition to the chocolate makers purple trademark, overturning the High Court decision.

The Court found that while Cadbury could have successfully registered a mark for the colour, its description was drafted too broadly, effectively to cover multiple “signs”.

As well as claiming the colour to cover the whole packaging of a product, Cadbury also claimed it as “being the predominant colour applied to the whole visible surface” of the product.

Cadbury exhausted all attempts to trademark the colour purple after its application to appeal was refused by the Supreme Court. The chocolate maker was refused the chance to register Pantone 2685C when the Lords found it did not raise an arguable point of law.

In denying Cadbury’s application to lodge an appeal, the Court thought that there were no contentious points of law that required further consideration and that settled case law was clear. Cadbury would not obtain registration for its colour purple.