No doubt, somewhere amongst your Easter eggs this weekend, was the iconic colour of Cadbury’s Dairy Milk purple. However, we could see more mauve wrappers heading to the confectionery shelves. The Supreme Court has rejected Cadbury’s right to appeal against the Court of Appeal’s decision that Cadbury cannot trademark it’s Dairy Milk purple.
In 2004, Cadbury first filed a UK trade mark application for the purple shade “Pantone 2685C”. The application was allowed and published in the Trade Marks Journal in 2008 but due to opposition from Nestlé, could not be registered. An Intellectual Property Office hearing in 2011 dismissed Nestlé’s claims that the colour was not distinctive to Cadbury. The High Court in 2013 also dismissed Nestlé’s arguments, as Cadbury were able to show that the trademark had acquired distinctive character since its first use of the colour in 1914.
A year later, Nestlé took the case to the Court of Appeal and succeeded. The Court of Appeal decided that the application was an attempt to register ‘multiple signs’ involving the colour, and that the mark applied for lacked the required clarity, precision, self-containment, durability and objectivity to qualify for registration. Cadbury filed an application to appeal this decision to the Supreme Court but it was rejected as it was found that the application did not raise an arguable point of law.
It will be interesting to see whether Nestlé and other confectioners take a more liberal approach to the use of similar shades in their sweet wrappers. After all, Cadbury no longer has a right to the purple “perpetual monopoly”. Conversely, whilst Cadbury have exhausted all avenues of appeal to register the purple trademark, the common law principle of passing off still remains. Cadbury may well bring more passing off actions against those who use a similar colour purple for milk chocolate, in the hope that it will stop competitors from using the purple colour altogether.
Jointly authored by Laura Trapnell and Abigail Sinden.