Trademarking a colour

Jeremy Dickerson, Intellectual Property Lawyer and Chris Morris, Trade Mark Attorney, at International law firm, Burges Salmon discuss the possibility of brands trademarking specific colours following a ruling from the UK Intellectual Property Office in favour of Cadbury and its use of the colour purple.

When you see the colour purple, what do you think of? If you see it in the chocolate aisle at the supermarket then, according to the UK Intellectual Property Office, you will probably think of Cadbury.

Cadbury has successfully managed to capitalise on this pre-accepted notion and in a preliminary decision, the Office has accepted the confectionery company's application to register the colour purple (specifically, Pantone 2685C) as a trade mark.

Global food giant Nestlé opposed the somewhat daring application and to begin with achieved a measure of success in limiting the scope of protection for the mark. The competitor argued that a colour cannot be trademarked because colours are widely used in trade and purple was commonly in use by other companies when Cadbury applied for the trademark.

However, the Office found that the evidence filed by Cadbury showed that the colour functions as an indicator of product origin in respect of "chocolate in bar and tablet form; eating chocolate; drinking chocolate; preparations for making drinking chocolate".

Trademarks are traditionally linked to brand names, logos and slogans. Therefore it is a little unusual perhaps for colours alone to be registered as a brand attribute. This decision by the Intellectual Property office does not signal a sea change it instead should be seen as a real reflection of the very long standing and consistent use of purple by Cadbury and the copious evidence it was able to file showing that customers had been educated to associate purple with its products. However, the decision is of interest to the UK brand owners in general for two reasons:

Firstly, it demonstrates the level of sophistication of consumers and the fact that many elements of a product or its packaging can forge a link to a particular brand. In addition to colours, for example, particularly unusual bottles have been registered as trade marks in the past in respect of "alcoholic beverages". The first bottle of Maker's Mark was bottled in 1958 and featured the brand's distinctive dipped red wax seal. Maker's Mark now holds a U.S. trademark on the wax seal of their bottles.

Secondly, it shows the value that can be gained from a long-term consistency in packaging/branding, both in terms of educating consumers and establishing product recognition that works at a distance (consumers will see a bar is purple before they can read the words DAIRY MILK) and also in building strong and enforceable property rights.

This trade mark registration is, in our view, likely to be of particular value to Cadbury in respect of private label, lookalike products. Such products conventionally echo the overall "look and feel" of a household brand without necessarily using a name particularly close to the registered trade mark.

Previously, if it wanted to remove such products from the shelves, Cadbury may have had to rely in the courts on the tort of passing off, which has onerous evidentiary requirements. This new registration may force lookalike producers to steer clear of Pantone 2685C, or closely similar shades, and enable Cadbury to enforce a greater breathing space between itself and these competing products.

We will wait to see whether Cadbury's stated aim of creating a "purple patch" in retail outlets is successful and whether other purple spots disappear.

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