(Image from here)
While the “Glass and a half full of joy” catchphrase is no longer being sported by Cadbury, the followers of Spicy IP, who have a sweet tooth, must be aware of the purple packaging that the chocolate giant has made famous throughout the years. The same has also been the subject matter of a recent trademark battle between Cadbury and arch rival Nestle before the Birmingham High Court.
As far back as 2004, Cadbury had applied to register the color purple, or to be more precise, “Pantone 2685C”, as a trademark for its chocolates. The application had been approved back in 2008. Following this, Nestle had filed an objection, but the Registrar of Trade Marks had ruled in Cadbury’s favor, while at the same time specifying the goods to which such purple trademark can be registered as chocolates in bar and tablet form, drinking chocolate and preparations for making such and chocolate for eating. Chocolate cakes, confectionaries and other chocolate assortments were kept beyond the purview of the said trademark.
This decision had been challenged by way of an appeal by Nestle before the High Court. Nestle argued that the purple trademark was not a sign that can be represented graphically and hence the same could not be registered as a trademark.
Judge Colin Birss of the Birmingham High Court ruled on September 30, 2012 that Nestle’s primary case is liable to be dismissed, since evidence has revealed that the public generally associates the color purple with chocolates manufactured and sold by Cadbury and hence the latter is entitled to be granted a trademark for the said color with respect to relevant goods. Having said that, Judge Birss also opined that the initial specification of the products with respect to which Cadbury could apply such trademark had been too broad and he qualified such products by restricting the application to milk chocolates only.
Interestingly, this decision is one of several that have seen a brand taking ownership of a color as part of its intellectual property. One may refer to the luxury footwear brand Louboutin’s attempt to trademark the color red as used on the soles of its stiletto shoes and the resulting trademark battle with rival YSL as well as the renowned Tiffany’s attempts to protect its blue brand of color. As Fiona McBride (partner and trademark attorney at law firm Withers & Rogers, who has been associated with some of these cases) has opined, it is a considerably difficult task as such to get a color registered as a trademark for a brand, chiefly owing to the efforts involved to present sufficient evidence to show that the said color had become synonymous with the brand concerned in the eyes of the public.
While Nestle has withheld comment on this decision till now, one only hopes this defeat won’t make their products, considered by many to be just as much good as anybody else’s, leave a sour taste in the mouth, so to speak!