Société des Produits Nestlé v Cadbury, High Court
Cadbury has fought off an extensive challenge by its rival chocolate supplier, Nestlé, and succeeded in the High Court in upholding its trade mark registration that had been granted to it for the colour purple (Pantone 2685C). The registration has been limited to milk chocolate foods and drinks rather than white or dark chocolate. This gives Cadbury the exclusive right to use that particular colour on chocolate bars and stop others from doing so.
Registered trade mark protection applies to any sign or mark that is capable of distinguishing goods or services from another. Trade mark rights are commonly granted for names and logos. Unusually, they have been granted for bottle shapes (eg Coca Cola) or sounds (such as the Direct Line jingle). Due to the exclusive rights granted, it is hard to obtain trade mark protection for a single colour, but Cadbury was able to surmount its uphill battle in this case due to acquired distinctiveness through use since 1914 and the high level of association of consumers with the colour with its Dairy Milk products.
All this talk is enough to make you want to want to “have a break”…Oh wait, that’s Nestlé’s registered trade mark after it managed a few years ago to prove the association of that phrase with its Kit Kat brand.