Despite Nestlé arguing that the colour should not be protected as a trade mark, the judge ruled that this particular shade had been linked to the chocolate bar for more than 90 years.
Intellectual property partner in DWF’s food group, Ed Meikle, said: “The importance of this decision for Cadbury cannot be underestimated. Arguably, the colour is one of the chocolate manufacturer’s most important assets and as such, the company would undoubtedly have appealed the decision if it had lost.
“Perhaps Nestlé was simply testing what is currently acceptable to the Courts; but it must have known that challenging a core asset of its arch rival could be provocative.
“For some time, a single colour has been recognised in law as capable of being a trade mark -but only for a particular colour and for specific products or services. As well as Cadbury’s purple for chocolate, other well known examples include BP’s green for petrol stations, Orange’s orange for mobile phone services and UPS’ brown for parcel delivery services.
“So long as the single colour on its own can indicate the origin of the product or service, then it is likely to be recognised as a trade mark and, most importantly, enable the owner to stop others from using it.”
Paul Medlicott, head of FMCG at law firm Addleshaw Goddard, commented: “There are argument from public policy stating that brands shouldn’t have monopolies over colours unless they can show that the colour is distinctive of their brand alone.
“An applicant needs to be able to demonstrate consistent use of a Pantone shade over a prolonged period of time (on products and in advertising, promotions and packaging) and trade marks will be restricted to a narrow class of goods and services. Following the High Court’s decision, Cadbury’s trade mark for the colour purple Pantone 2865c is now specific to milk chocolate bars and tablets, milk chocolate for eating and drinking chocolate.”
Source: DWF
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