24 years since it began claiming sole rights to the colour purple (Panatone 2685C), Cadbury has lost an appeal that would have protected its 1995 trademark.
For the first time in over two decades, Cadbury has to use unregistered rights to stop rival brands from using the same purple tone.
The news comes in the wake of Cadbury’s set back last year when a decision by the UK Court of Appeal denied the chocolatier the right to change the description of its 1995 trademark, which rendered it potentially invalid.
The 1995 trademark was only registered for “chocolate in bar or tablet form,” so in 2004 Cadbury applied for a new trademark to ensure its drinking chocolates, broader chocolate range and cakes could also monopolise legally on its trademark purple.
However, Nestle opposed the application. It said that the colour purple had no distinctive character, and was too broad for a range of goods. In agreement, the UK Court of Appeal rejected the application in 2013.
The court found issue with the wording: "Being the predominant colour applied to the whole visible surface of the packaging goods" as it felt the term 'predominant' was too broad.
As its 1995 application used the same wording, in December of last year, Cadbury appealed to remove the second mark of its application that used the term 'predominant.' It eventually lost the case, placing its trademark claim in a precarious position.
Recognising this, Cadbury had two options; either to drop the trademark all together, or apply for a fresh trademark all over again.
Rebecca Anderson-Smith, a trademark attorney at Mewburn Ellis in Bristol told the BBC that Cadbury dropped its 1995 trademark with similar wording to its 2004 application, after realising it was unenforceable.
Cadbury says it will continue to protect what it believes is a distinctive trademark, using unregistered rights.