Cadbury: Which colour purple?

By Brand Heeler

Cadburys attempt to lay claim to an entire chunk of the colour spectrum to sell their chocolate

‘Colour marks’ are registered trade marks consisting of a single colour, used in abstract, as opposed to, say, being part of a logo. Big businesses (and they usually are big) like to register colour marks as a way of extending their brand protection and maximising control over their house colour schemes. So Barclays Bank in the UK has its ‘Barclays Blue’, BP the petrol guys have their particular shade of green etc. In theory, provided you satisfy the basic trade mark application requirements, colour marks are perfectly permissible. The trouble is, there aren’t that many colours to go round, and you run into trouble if you start allowing people to monopolise them.

Most native English speakers can usefully distinguish about 12 basic colours (even if the good folks at Pantone® might want to up this figure by several orders of magnitude). At this point, we have to resist the temptation of an enjoyable diversion into colour theory, the Sapir-Whorf hypothesis and heraldry, but here’s a good practical illustration of the problem: back in the 90’s easyGroup launched a brief foray into mobile phones. Their house colour is of course orange, but that was also the favoured shade of none other than telecoms giant Orange (remember them?). Even if the respective oranges weren’t quite the same, could both businesses lay claim to the same colour? Should either be entitled to exclusive rights over it?

A similar dispute has been bubbling away in the world of confectionery. Cadbury applied to register purple in respect of chocolate and that would leave it – and it alone – exclusively entitled to use purple on chocolate bars. For anyone brought up in Britain or Australia, there’s a clear, not to say fond, association between Cadbury and purple, but purple’s a pretty popular colour for chocolatiers so Nestlé felt it had to object. And it has now successfully blocked Cadbury’s application.

Cadbury had specified a Pantone shade (2685C) so we all knew exactly which purple we were talking about, and had produced evidence of ‘acquired distinctiveness’ – i.e. evidence that consumers recognised this purple as indicating Cadbury. This got them through the UK Trade Mark Office unscathed, and they squeaked through the High Court with little more than a restriction of their registration to milk chocolate. But, in the Court of Appeal, they slipped up on their specification that the purple was ‘applied to the whole visible surface, or being the predominant colour applied to the whole visible surface’ of their packaging. The Court decided that this use of ‘predominant’ left matters too uncertain and cancelled the registration.

This doesn’t mean Cadbury can’t continue to use purple, and it doesn’t mean purple won’t remain an important part of Cadbury’s brand and goodwill. It also doesn’t mean colour marks are now unregistrable, but it does you’ll have to be much more careful about how you claim them. For now, though, Cadbury may have to learn to share its favourite colour with its competitors, although word is an appeal to the Supreme Court is likely.

All of which reinforces the status of colour marks as luxury purchases for the very rich or the very large, and of little relevance to ordinary businesses. There’s so much more to a brand than choice of palette (or even palate), and you need to remember to keep your brand protection strategies proportionate to your needs. We suggest that most businesses will find better ways of spending their time and money, and we’re glad we not forced to choose between our loyalty to Dairy Milk and our secret love of Milka (moo!)

This article contains our thoughts and opinions on an issue of general interest and is written from the perspective of Australian and/or English law. It is not legal advice and is not provided in the context of a solicitor-client relationship. It may not even be relevant to your jurisdiction. No duty of care is assumed or accepted. Please carry out appropriate research and consult with a suitably qualified legal expert before taking any action or making any decisions.

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