The High Court recently rejected a challenge by Nestlé to Cadbury’s application to register its colour purple for chocolate. It is established law that single colours can be registered as trade marks, but what exactly will other manufacturers be prevented from doing by this registration and what does it take to ‘own’ a colour?
Cadbury applied to register its purple colour as a UK trade mark in 2004 for a full range of chocolate-based goods including bars, confectionery, assortments, cocoa or chocolate based-beverages and cakes.
Initially, he application was rejected by the UK Trade Mark Registry as being “devoid of distinctive character” - that is, incapable of serving the function of a trade mark and identifying the origin of the goods. However, Cadbury filed evidence that the mark had “acquired distinctiveness through use” over almost a century. On this basis the mark was accepted.
The saga didn’t end there though. The decision was appealed by Nestlé, which argued this was not an application for a single trade mark but a whole series of trade marks for different arrangements of the colour purple on packaging.
The appeal was unsuccessful overall, but Nestlé was able to limit the mark to only the following goods: “chocolate in bar and tablet form chocolate for eating drinking chocolate preparations for making drinking chocolate”.
This case shows that the UK courts will limit a monopoly in a colour so it protects only the genuine and proven interests of the applicant. Cadbury’s protection is not for purple generally but for the particular shade of purple it uses. Cadbury’s trade mark will only be infringed if a shade of purple so similar to the Cadbury purple as to be indistinguishable is used by someone else.
To stand a chance of securing a monopoly for a colour trade mark, a colour must be narrowly defined and the precise shade must always be used. Since Cadbury had almost a century of use of its purple to rely on, the case should prove an exception rather than the rule and the majority of colours will remain available for all to use.