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Cadbury sees red over the colour purple

A promotion uses a giant version of the unmistakable purple chocolate bar. Photograph: MJ Kim/Getty

A promotion uses a giant version of the unmistakable purple chocolate bar. Photograph: MJ Kim/Getty

  • by TERRY MURDEN
 

FOR the AA it was always yellow and black, Royal Bank of Scotland is blue, while telecoms company Orange has naturally been orange.

Colours have always been a key part of a company’s branding and in some cases they have been such a cause of dispute that the arguments have had to be settled in the courts. For Cadbury, a ten-year battle to register the colour purple ­finally ended this month when a judge ruled in favour of an appeal from Nestlé.

The issue of colours in branding has exercised legal minds over the rights of a company to effectively own a colour.

With World Intellectual Property Day taking place this week, lawyers are saying businesses need to assess how best to protect their key brands through trademarks such as words, logos, shapes, sounds and even smells – all of which are permitted by the UK trademarks legislation.

Cadbury first began marketing Dairy Milk in a pale mauve colour back in 1905, but it wasn’t until 1920 that its full range of Dairy Milk chocolate adopted the distinctive purple branding.

In 2004, the firm filed a UK trademark application for the purple shade Pantone 2685C, and the application was allowed, but because Swiss rival Nestlé objected, it could not be registered.

The two companies have been slugging it out through the courts ever since. In 2011, the UK’s Intellectual Property Office upheld the trademark, although the goods covered by it were restricted. Nestlé then went to the High Court, which also upheld the trademark but restricted it to milk chocolate products. Finally, this month, Nestlé took the case to the Court of Appeal, which found in its favour.

The case is one of a number of colour branding disputes that have reached the courts. Last year luxury shoemaker Christian Louboutin took Yves Saint Laurent to court over a red high-heel shoe that had a red sole, similar to its own shoes. A judge ruled no-one could sell shoes with red soles unless the shoe itself was red.

Harrods failed to patent the colours olive-green and gold, while leisure company EasyGroup agreed with Orange to put a disclaimer on its orange mobile publicity.

Lawyers at Shepherd and Wedderburn say that while trademarks act as an effective shorthand for brand identity and attract strong intellectual property rights, Cadbury’s glass is “more than half full”. This is because it also has common law rights which allow it to protect the goodwill that it has built up over many years of trading. The refusal to allow the colour purple as a registered trademark does not prevent Cadbury from taking action against imitators for “passing off” if they use its distinctive purple on competing products.

Joanna Boag-Thomson, a partner in the firm’s intellectual property team, said: “This case turned on the use of the word ‘predominantly’ in Cadbury’s application for trademark registration.

“The ruling shouldn’t be taken to mean that businesses are not able to register colours as trademarks to protect their brands. Colour is a key element of many brands – Harrods’ green, Tiffany’s blue, T-Mobile’s magenta and Heinz beans’ turquoise, all help consumers to differentiate between products, and colours form an important part of a brand’s visual appeal.”

 

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