Wednesday 5 December 2018 4:36 pm

The colour purple: Cadbury loses latest court battle over trademark

The Court of Appeal has ruled against chocolate-make Cadbury in a battle over its ability to trademark a shade of purple.

Cadbury was attempting to modify a trademark it already holds in relation to the use of a distinctive shade of purple with its chocolate bars.

Cadbury’s trade mark for the shade of purple “applied to the whole visible surface, or being the predominant colour applied to the whole visible surface, of the packaging of the goods”, registered in respect of chocolate bars.

The chocolate-maker tried to delete the second half of the trade mark concerning purple “being the predominant colour applied to the whole visible surface”.

In his judgment Lord Justice Floyd said: “If allowed to be the predominant colour rather than restricted to the whole surface, the registration could cover uses of purple in extravagantly different ways… the mark could appear as stripes, spots, a large central blob, or in any other form.”

He said this would not satisfy a requirement that marks must resemble each other and only differ in non-distinctive ways.

A Mondelez International spokesperson said: “We are disappointed with this decision. Our iconic colour purple has been used for Cadbury chocolate products for more than a century and is synonymous with the brand.

"We will continue to protect what we believe is a distinctive trademark and challenge those who attempt to pass off their products as Cadbury chocolate by using this colour.”

Alex Borthwick, of counsel at IP law firm Powell Gilbert, said: “The sole condition that purple is the predominant colour covers a very wide range of marks many of which would not resemble each other or have substantially the same visual identity. This was one of the Court of Appeal’s objections and is a powerful reason why it reached its’ result.”

Kate Swaine, partner at law firm, Gowling WLG said: "Whilst the decision leaves the Cadbury colour purple trade mark open to attack for a lack of precision in its description, I would expect to see Cadbury vigorously defend its associations with the colour purple through the law of passing off. There will be more battles to come if competitors view this as an open door to use of a similar shade of purple on confectionery."