Trademark Law – Cadbury and One Shade of Purple

A recent High Court Ruling in the UK has given Cadbury the exclusive right to a certain shade of purple (Pantone 2685C) on its dairy milk chocolate packaging.

This was an interesting case as normally colours are only capable of registration as trademarks if they have acquired distinctive character through use (think of an “Orange” square for example) and can be represented graphically (hence the reference to the Pantone chart of colours). Nestle had waded into the fight with its view that Cadbury had not sufficient goodwill in the particular shade of purple in question but the Jude said in his ruling that:

“Since single colours per se are, as a matter of European law, capable of being signs … (i.e. they are capable of being a sign, capable of being represented graphically and capable of distinguishing) then … in my judgment the colour purple (Pantone 2685C) applied to the whole visible surface, or being the predominant colour applied to the whole visible surface, of the packaging of chocolate, is capable of being a sign within [the terms of EU trade mark law]”.

It is noteworthy that the Judge restricted the trademark to “milk chocolate in bar and tablet form; milk chocolate for eating; drinking chocolate [and] preparations for making drinking chocolate” only, but, overall it has to be said that it was a successful day for Cadbury.

If you require any assistance with trademarks then please contact David Reilly on dreilly@dreilly.i.e or on 086 252 9483.