Cadbury’s legal battle to protect its iconic shade of purple has come to an end with the confectionery company giving up its trademark.
The brand first trademarked the shade of purple, known as Pantone 2865c, in 2012. As a result, all other chocolate companies were banned from using the same purple hue on their packaging.
At issue is Cadbury’s original trademark application, aimed to protect the color from being “applied to the whole visible surface or being the predominant colour” of chocolate wrappers.
The firm’s parent company, Mondelez International, also tried to expand the trademark to cover the color even if it was only visible on a small part of a wrapper.
It is the word “predominant” that is seen as the biggest issue, Rebecca Anderson-Smith, a trademark attorney at Mewburn Ellis in Bristol, told the BBC.
“I think the courts and trademark offices are very strict with colour trademarks,” she said. “They don’t want to give anyone a monopoly on the colour purple.”
London’s Court of Appeal ruled against Cadbury in December 2018, and the chocolate maker has decided not to launch any further appeal.
“If allowed to be the predominant colour rather than restricted to the whole surface, the registration could cover uses of purple in extravagantly different ways… the mark could appear as stripes, spots, a large central blob, or in any other form,” Lord Justice Floyd said in his judgment.
Now that the Cadbury has dropped the trademark bid, rival brands are expected to pounce on the purple tone for packaging purposes.
Rebecca Anderson-Smith, a trademark attorney at Mewburn Ellis, called the decision “bad news” for Cadbury.
“It seems Cadbury realised their existing UK trademark registration for that purple would be extremely difficult, if not impossible, to enforce, as they appear to have voluntarily surrendered the registration,” she said to The Sun.
Parent company Mondelez International vowed to continue to fight for its packaging.
“We will continue to protect what we believe is a distinctive trademark — Cadbury Purple – and challenge those who infringe it,” said a spokesperson for Mondelez International.
The company does have an existing trademark from 2014 that uses similar wording, but legal experts warn this would be very difficult to enforce.
“The purple reign of Cadbury would appear to be over,” said Alexandra Brodie, a partner at law firm Gowling WLG to CITY A.M.
“Cadbury could still try to enforce its rights in the Cadbury Purple relying on unregistered rights such as ‘passing off’ but it will be very difficult,” she added.
This development is likely sweet revenge for Nestle in what has been an ongoing battle of the bars with rival Cadbury.
In July 2018 Nestle lost a battle to Mondelez International over the validity of its EU trademark for the four-finger shape of the KitKat.