Cadbury has been allowed to register a trademark for the colour purple used on its chocolate bar wrappers, following a High Court ruling this week.
The confectionery giant has been attempting to register the colour for several years and lawyers representing Cadbury said they would now be able to do so.
In the past, it has locked heads with Nestlé and the UK intellectual property office (IPO) for invalidating two of Cadbury’s trademarks for the purple colour in 2019.
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However, this week, Justice Meade said that: “if Cadbury’s circumstances are not right, I do not see how any other applicant would do better,” with regards to registering the colour.
The decision means that brands can register a colour as an abstract thing, as it can be a ‘sign’ as required by the UK Trademarks Act.
“There is now clear guidance for the UK IPO that these marks are registerable in principle and can be registered if the applicant is able to meet the ‘acquired distinctiveness’ test,” said Mary Bagnall, partner of the law firm Charles Russell Speechlys.
She added: “This decision does not open the floodgates for the registration of colour marks per se, which will remain difficult to obtain because of the need to provide compelling evidence of ‘acquired distinctiveness’ in the mind of the consumer, something that Cadbury was able to achieve having used Cadbury Purple as a brand for over a century.”
Intellectual property partner at the law firm Gowling WLG, Kate Swaine, said: “This is the latest in the ongoing battle over the colour purple.
“The Court concluded that Cadbury’s mark registered for the colour purple ‘applied to the packaging of the goods’ was invalid as the scope of the right was unclear but it stated that a mark registered for the same colour without any reference to the packaging of the goods at all, was valid.”
She added: “Securing a colour mark remains challenging given the need for distinctiveness but this decision will be well received by those brand owners who regard colour as a key element of their brand identity.”
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1 Comment. Leave new
This is absolutely appalling and poses a threat to creativity. Another proof that money rules the world.