Last week Cadbury, the well-know chocolate manufacturer, suffered a significant blow to its brand protection strategy.
For many years, Cadbury has been well known for using a particular shade of purple on the packaging for its chocolate bars. Back in 2004 it applied to register the particular colour in question as a UK trade mark. Nestlé opposed the application.
Initially, the UK Trade Marks Registry allowed the application through to registration, for a range of chocolate related goods. Nestlé unsuccessfully appealed the decision to the High Court. Nestlé then made a second successful appeal to the Court of Appeal. In non-legal speak, Nestlé argued that the registration which Cadbury was seeking would mean that, if granted, Cadbury would obtain an unfair competitive advantage. It would allow Cadbury to prevent other traders from using the colour if it was the "predominant colour applied to the whole visible surface" of the packaging of the goods. The Court of Appeal held that to allow such a mark through to registration would offend against the principle of fairness, by giving a competitive advantage to Cadbury and by putting Nestlé and its other competitors at a disadvantage.
A key message coming out of the judgment is that brand owners will now face considerable problems seeking to convince the UK Trade Marks Registry that a pure colour mark is properly registerable as a trade mark. Whilst, in principle, it is possible to register a colour mark per se as a trade mark, in reality it appears that it will now be very difficult to do so in the UK.