“Cadbury may have lost this battle, but the war of the purple may well continue” - trademark lawyer on Supreme Court ruling
As Cadbury loses its Supreme Court battle over its attempts to register the colour purple, trade mark lawyer Lee Curtis has suggested that this may not be the end of the attempts by the brand.
Nestle won the appeal as a judge said a lack of ‘precision’ was given for trademarking the colour Pantone 2685C, which is used on Dairy Milk packaging.
“They lost the Court of Appeal decision effectively down to the use of one very small word 'predominant' in the description of their trade mark,” Curtis, partner at trade mark law firm Harrison Goddard Foote, explained.
The Court of Appeal decision effectively held that Cadbury's trade mark application did not sufficiently define its rights to the colour purple, having suggested that saying a ‘predominant’ amount of purple on packaging could be defined different by different people: fully purple, half purple, or anything in between.
“However, Cadbury may have lost this battle, but the war of the purple may well continue. It is quite possible that they have or indeed will file new trade applications to define their alleged rights to the colour purple in relation to chocolate products better. The Court of Appeal decision was worded in such a way that a better description of their alleged rights might well be accepted,” Curtis said.
“Further, as Cadbury have pointed out they still potentially have common law rights to the colour purple when applied to the packaging of chocolate products built up by decades of use. Trade mark rights in the UK can be established via use under common law as well as via trade mark registrations. Thus this decision should not be seen as free for all for all to use purple colour packaged chocolate products."
Although the battle may be over, Curtis suggests that the war may not be won on the colour purple.