Another one bites the dust: Cadbury takes another trade mark blow

If one were to ask the average consumer what colour they associate with the brand Cadbury, they would probably reply with the colour purple. Arguably, Cadbury has done all it can through trade mark law and advertising to ensure that the famous purple colour (Pantone 2865c) of its wrapping paper was protected.  However, with the increasing competition in the confectionery industry, is it right that Cadbury be allowed to monopolise on such a strong and distinctive colour? Over the years the courts have decided that this should not be the case. As a result, Cadbury has decided that it would stop all attempts at protecting its trade mark (the purple coloured wrapping paper).

Previously, the court through a serious of decisions, have decided that Cadbury’s trade mark application for its purple colour was unenforceable as it was too wide-ranging.  A prominent example of this is when its competitor Nestle won an appeal against Cadbury to use the purple colour to market one of its products. In reaching its decision, the Court of Appeal reasoned that the trade mark application for the purple mark did not possess "the required clarity, precision, self-containment, durability and objectivity to qualify for registration". As a result, it has become increasingly difficult for Cadbury to prevent any other third parties from using the famous purple colour.

Cadbury tried to combat the lack of clarity in its colour trade mark by stating that there were two parts, and then attempted to remove the part relating to the predominant colour.  In December 2018, the court refused to accept this view and Cadbury removed one of its 1995 trade marks.

The confectionery giant may still have some options at its disposal when it comes to protecting some rights relating to the purple colour mark. The owners of Cadbury, Mondelez International have stated that the brand have yet to appeal, but it will try to protect what is considers to be a distinctive colour mark through unregistered rights (‘passing off’). Mondelez International asserts that these rights will help to protect current Cadbury’s customers from confusion with other future competitor products. 

Cadbury still possesses a 2004 trade mark that contains similar wording to those contained in its purple colour trade mark. However, only time will tell if the Cadbury brand will be successful in protecting any rights relating to the colour purple.

By Fatima Amedu