Submitted by Jessica Vaianisi.
UK-based chocolate company, Cadbury, was successful in preserving its pending application for the colour purple (Pantone 2685c) in association with milk chocolate. Nestlé had appealed to UK’s High Court, challenging the UK Intellectual Property Office’s 2008 decision to award Cadbury exclusive use of the distinctive purple for its wrappers, arguing that “colours could not be practically trademarked for commercial advantage.”
Noting that Cadbury has used purple for its Dairy Milk bars since 1914, the High Court in London rejected the appeal, stating that “the evidence clearly supports a finding that purple is distinctive of Cadbury for milk chocolate.”
The ruling means that, barring any further appeals, Cadbury’s application may now proceed to registration for the particular shade of purple for use in association with “milk chocolate in bar and tablet form; milk chocolate for eating; drinking chocolate; preparations for making drinking chocolate”.
This is not the first time we have seen a controversial colour trademark case; last month in the U.S., fashion designer Christian Louboutin won a trademark case against Yves Saint Laurent over the use of red soles on shoes. The District Court overturned an earlier 2011 decision, which said that a colour could not serve as a trademark in the fashion industry.
While colour trademarks are extremely difficult to obtain, these two rulings demonstrate that obtaining the registration of single colour marks requires a high-level of public recognition, where the colour has become analogous with brand.
To view the UK High Court decision, click here.