Implications of the Lost Trade Mark Battle Over Purple Hue Used for Cadbury-Branded Products

Many companies in the food and beverage industry will not fully understand how nonconventional trade marks such as colours, shapes and smells can be protected by law. However, a large number would undoubtedly strive to obtain monopoly rights for such things in the hope of protecting customary characteristics, while also preventing competitors from doing so. But, whether this is legally and commercially viable is a complex question.

This was undoubtedly Cadbury’s aim when it protected its well-used colour purple as a trade mark in 1995. However, in December 2018 the Court of Appeal rejected Cadbury owner Mondelez International’s attempt to widen the scope of that protection. It said an application seeking protection for the colour as the ‘predominant colour’ on product packaging was imprecise and could include a whole range of different marks within one application. In contrast, it was implied that an application requesting protection for the colour applied to the whole surface of product packaging might be acceptable. Arguably however, this would have limited commercial use to Cadbury as its packaging is never just purple.

Businesses striving for such protection should not only consider whether protection is likely, but also question whether that protection would provide the commercial advantage they desire, having considered the associated cost of obtaining it.

The Court of Appeal decision makes it clear that aspirational ‘one fits all’ protection will not be granted. So, multiple narrower applications would probably be required for packaging that would undoubtedly be redesigned and reinvigorated on a regular basis.

This article first appeared in Food Manufacture in March 2019.