Cadbury Dairy Milk Marvellous Creations

Cadbury still has common law rights to the colour

Contrary to press reports this week, Cadbury has not lost the exclusive right to use its iconic purple on packaging.

Last week, the Court of Appeal rejected its trademark application, first filed in 2004, to register the colour.

The decision is a blow for Cadbury, but it does not mean that Nestlé - which opposed Cadbury’s application - or any other chocolatier can use the shade.

“Press comment that the colour purple is free for all to use on chocolate is wide of the mark,” said Lee Curtis, a partner at intellectual property firm Harrison Goddard Foote.

“Cadbury can still rely on its common law rights to the colour, based on use, to stop competitors using the colour on chocolate packaging.”

Curtis said Cadbury lost the case on a technicality of trademark law. Cadbury had attempted to register packaging that was “predominantly” purple but the court ruled the wording was too vague. It suggested that a better description would have stated a specific minimum percentage of the packaging surface area.

Curtis said it was likely Cadbury would appeal or refile the application - in which case the dispute could run for years.