Cadbury has won a legal battle after Nestlé took it to court, challenging an earlier ruling which gave the former company exclusive use of Pantone 2685C – the particular type of purple used in Dairy Milk packaging.
Despite Nestlé arguing that the colour should not be protected as a trade mark, the judge ruled that this particular shade had been linked to the chocolate bar for more than 90 years.
“The importance of this decision for Cadbury cannot be underestimated,” said intellectual property partner in DWF’s food group, Ed Meikle. “Arguably, the colour is one of the chocolate manufacturer’s most important assets and as such, the company would undoubtedly have appealed the decision if it had lost.
“Perhaps Nestlé was simply testing what is currently acceptable to the Courts; but it must have known that challenging a core asset of its arch rival could be provocative.
“For some time, a single colour has been recognised in law as capable of being a trade mark – but only for a particular colour and for specific products orservices. As well as Cadbury’s purple for chocolate, other well known examples include BP’s green for petrol stations, Orange’s orange for mobile phone services and UPS’ brown for parcel delivery services.
“So long as the single colour on its own can indicate the origin of the product or service, then it is likely to be recognised as a trade mark and, most importantly, enable the owner to stop others from using it.”
Ed Meikle is a partner in DWF’s food sector group. He specialises in brand protection law, advising household names on the development, management and protection of brands.