Confectionary giant Cadbury has won a High Court legal battle against rivals Nestlé for the right to prevent other confectioners from copying its distinctive purple wrapping.
Cadbury first used the purple colour on its Dairy Milk wrapper in 1914, as a tribute to the late Queen Victoria.
They first applied to the Intellectual Property Office to register Pantone 2865c, the specific purple hue, back in 2004.
The application covers the use of the Cadbury’s purple as ‘applied to the whole visible surface of the packaging’ of the various chocolate products which Cadbury sells including confectionary, beverages and cakes.
Cadbury’s Swiss rivals, Nestlé, challenged the trademark ruling in 2008 arguing that the shade of purple chosen had no distinctive character and that the trademark application was too broad.
Nestlé won a small victory when the Intellectual Property Office ruled that the Cadbury’s purple could only apply to chocolate bars and chocolate beverages, narrowing the application of the trademark. However, Nestlé opted to appeal the decision to have the trademark removed entirely.
Ruling in favour of Cadbury, Mr Justice Birss said: “The evidence clearly supports a finding that purple is distinctive of Cadbury for milk chocolate.”
The High Court also found that contrary to Nestlé’s argument, colours are capable of being trademark registered.
Cadbury welcomed the ruling.
“We welcome the decision of the High Court which allows us to register as a trademark and protect our famous colour purple across a range of milk chocolate products,” a spokesman said.
The ruling follows in the footsteps of a US court’s decision last month which protected shoemaker Christian Louboutin’s trademark red soles from being copied by other shoemakers unless the entire shoe was one colour.
Although colours are capable of being trademark registered, lawyers acknowledge that this is a difficult argument to enforce.
“The instant association of colour with a brand is a lucrative opportunity which adds value to the brand. However, achieving this recognition and being able to protect the colour through trademark registration is not easy,” Fiona McBride, a UK patent and trademark lawyer told The Daily Telegraph after the Louboutin case.
Cadbury defeats Nestlé in battle for purple wrapper (The Telegraph)
Cadbury retains hold over its trademarked shade of purple (New Statesman)
Louboutin wins trademark case over red-soled shoes (The Telegraph)
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