January 29, 2019
The England and Wales Court of Appeal recently rejected Cadbury’s attempt to broaden an existing trademark for the iconic shade of purple used widely on its confectionery (Case No: A3/2016/3082).
Cadbury registered a trademark for the Pantone 2685C shade of purple with the UK Intellectual Property Office in 1998. In 2014, the company attempted to alter the description of this trademark, arguing that it was in fact two distinct marks: one for when the colour applied to the whole surface of the packaging of confections, and one for when it was the predominant colour of the packaging. The UK Intellectual Property Office (UKIPO) rejected this interpretation as being too broad, as did the High Court.
At the Court of Appeal, both the UKIPO and Cadbury’s predominant rival, Nestlé, made submissions against Cadbury’s argument. In rejecting Cadbury’s appeal, the Court held that accepting Cadbury’s view would have far-reaching consequences. Taking particular issue with the second proposed interpretation, Lord Justice Floyd commented that the application of the trademark to products where Pantone 2685C was the predominant colour would be overreaching and would cover uses in “extravagantly different ways.”