Cadbury loses its latest trade mark battle on its colour purple
Cadbury was trying to gain permission to modify its existing trade mark to include the different ways it uses the distinctive shade of purple in its packaging and advertising. At present the trade mark applies to “the whole visible surface” of the packaging of the goods, or “being the predominant colour applied to the whole visible surface, of the packaging of the goods” in the class/classes that relate to chocolate bars. There was no objection in principle to the purple colour itself being a registered trade mark. Cadbury’s proposed amendment would have removed “being the predominant colour applied to the whole visible surface”.
Lord Justice Floyd justified his decision by saying:
“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.”
In his view this would not satisfy a requirement for a trade mark to be a sign, nor a series of trade marks to resemble each other and only differ in non-distinctive ways.
This decision leaves Cadbury’s existing trademark vulnerable to attack by third parties for being invalidly registered, because the wording ‘being the predominant colour applied to the whole visible surface’ was previously considered too broad by the Court of Appeal.
A spokesperson for Mondelez International (Cadbury’s owners) said they were “disappointed” with this decision as “our iconic colour purple has been used for Cadbury chocolate products for more than a century and is synonymous with the brand”. They finished their statement by promising they would continue to do everything they can to protect their trade mark and challenge anyone who tries to “attempt to pass off their products as Cadbury chocolate by using this colour.”
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