In 2008, Cadbury applied to trademark the purple colour, Pantone 2865c, in a number of categories but Nestlé challenged the registration claiming it “lacked distinctive character”.
A preliminary ruling by the Intellectual Property Office (IPO) states that Cadbury can trademark the colour for packaging its chocolate in bar and tablet form as well as eating and drinking chocolate. The IPO said it was satisfied Cadbury provided significant evidence of its long-term use of the colour, which has been employed since 1914.
Its trademark use does not, however, include chocolate cakes, confectionery or chocolate assortments, following Nestlé’s objections.
The ruling means Nestlé can continue to use a similar purple colour in its Quality Street assortment.
A spokesperson from Cadbury says its use of the colour purple is “vital” to the brand in the competitive impulse purchase market. He adds: “Any marketer will understand that you zealously guard your icons and none more so than colour.”
Fiona McBride, partner and trademark attorney at law firm Withers & Rogers, says: “This decision will be a major relief for Cadbury. The chocolate maker can rest assured that its registration for pantone 2865c is iron-clad and the brand will be unlikely to face further challenges over the use of the colour purple in the future.”
The ruling is the latest that sees a brand seek to take ownership of a colour as part of its intellectual property. Luxury footwear brand Louboutin is currently attempting to trademark the use of red on the soles of its stiletto shoes and is embroiled in a lawsuit with rival designer YSL.
More recently, jewellery brand Tiffany lent its support to Louboutin’s case as it has sought to protect its blue brand colour in a similar way.
McBride adds: “Colour registrations are notoriously difficult to obtain, largely because it can be difficult to prove sufficient use to demonstrate that the colour has become synonymous with the brand in the mind of the consumer. Brand owners should definitely continue to consider registering a colour for trade mark protection where they believe that it has become a powerful and distinctive part of their brand.”
The IPO’s final ruling on the case will come “in due course”.
A Nestlé spokesperson says: “We are awaiting the final decision. In its interim decision the UK IPO has accepted Cadbury’s application only for some of the goods for which Cadbury had applied and rejected it for others, in line with Nestlé’s request. We will assess the final decisions once it has been issued.”