Cadbury has succeeded in obtaining the exclusive use of the colour purple which the brand uses for its renowned chocolate's branding. The Registrar at the UK Intellectual Property Office (IPO), Allan James, ruled that the Cadbury goods demonstrated the necessary "distinctive character" to qualify for the protection of a trademark.
Cadbury was initially granted the trademark for pantone 2865c in 2008 for use in its chocolate bars and other chocolate products. Nestle disputed the decision on the basis that the colour was not sufficiently distinctive to justify the award of a trademark to Cadbury. However, this argument seems to have been unsuccessful following the interim judgment of the UK IPO.
James stated that: "subject to any appeal, the mark will be registered for chocolate in bar and tablet form; eating chocolate; drinking chocolate; preparations for making drinking chocolate." However, James did find in favour of Nestle 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. In this respect "both sides have achieved a measure of success, Cadbury more so than Nestle" according to James.
Trademark registration for colours is renowned for being a challenge for the applicant. The difficulty relates to proving that consumers see the colour as being tantamount to the brand. In this case, Cadbury was able to show the distinctiveness of the purple colour in connection with its brand through its consistent use of the colour in its wrappers and advertising. Despite the fact that there is a public interest argument in preventing the creation of a "monopoly" over the particular colour in question, James considered that Cadbury's reputation was so strongly associated with the shade to merit registration.
This is not the first case where Cadbury has asserted its intellectual property rights to the colour; in 2003 the chocolate giant first challenged Australian company Darrell Lea for using the colour in its wrappers. Cadbury claimed that Darrell Lea was passing off its product by using Cadbury's signature colour to deceive customers. However, on this occasion the complaint was ultimately dismissed by Justice Heerey of the Melbourne Federal Court as it was not enough that the consumer had been "caused to wonder" about an association.
This recent UK IPO ruling could potentially be appealed, however it is considered unlikely that the trademark registration will be revoked. The ruling marks a significant step forward in the battle to register trademarks for colours. The colour of royalty in the chocolate market belongs to Cadbury for now.
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