The Drum: "Cadbury has faced yet another setback over its decades-long battle to own the right to trademark the colour purple, which it has used for its chocolate bars since 1905. A decision by the UK Court of Appeal in 2013 to reject its second trademark placed Cadbury's valid 1995 trademark, which only covers chocolate in the form of bars, in murky waters. The Court of Appeal's decision today (5 December) denies Cadbury the right to change the description of its original trademark, weakening its claim to the colour.
Nestle opposed the trademark, claiming that the shade of purple had no distinctive character, and was too broad for a range of goods. As a result of Nestle’s opposition, the UK Court of Appeal rejected the trademark application in October 2013, because it felt that the description did not adequately define the mark. The decision was primarily because of the wording: "being the predominant colour applied to the whole visible surface, of the packaging of the goods." The court found that the term 'predominant' was too broad. After the decision was made, Cadbury quickly realised that it meant its existing 1995 UK registration was potentially invalidly registered, because it used the same description as the 2004 application.
The loss in the court of appeal leads the way for rivals to start using the colour for their own chocolates, or for knock-off brands to pass off their products as Cadbury's, as although it still technically has a valid trademark, the use of the word 'predominant' places it in a precarious situation.
“The Court of Appeal has previously held that the wording ‘The mark consists of the colour purple, Pantone 2685C, being the predominant colour applied to the whole visible surface, of the packaging of the goods’ potentially opens the door to a multitude of different visual forms. Therefore, if the Court had accepted Cadbury’s argument that their UK registration is for a series of marks, Cadbury would arguably have a registration for a series containing an unknown number of different marks, consisting of the varying different forms. Unsurprisingly, this is something that the Court of Appeal was keen to prevent.”"