The mark will be registered for chocolate in bar and tablet form; eating chocolate; drinking chocolate and preparations for making drinking chocolate, subject to any appeal.
However, Cadbury, held by Kraft, were not deemed to have shown that the colour had acquired a distinctive character for ‘chocolate confectionery’ (chocolate not in bar form e.g. buttons) and ‘chocolate assortments’ and a trademark was not granted for these products.
The two confectionery giants went to war over the colour purple after Cadbury had applied to register Pantone 2685C, a shade of purple, as a trade mark in chocolate bars and other products.
Its application was accepted and published in the Trade Marks Journal on 30 May 2008.
In August 2008 Nestle opposed the proposed registration because it felt the colour was not distinctive to a brand and was a single colour among many others commonly used in the trade.
However, in his recent ruling on behalf of the UK’s Intellectual Property Office Judge owever Allan James partially approved the trademark and said: “I do not think that there is any doubt on the evidence that there is an association of some kind in the public’s mind between the colour applied for and Cadbury.”
Ian Wood, a partner at law firm Charles Russell LPP that represented Cadbury told ConfectioneryNews.com: “The decision recognises the strength of Cadbury’s existing marks for its colour and broadens the range of protection following a series of attacks from a major competitor.”
“This is a very significant victory for Cadbury after a very serious attack by Nestle which failed,” he said.
When asked for Cadbury’s reaction to the decision, spokesperson Tony Bilsborough said simply that Cadbury was pleased with the decision.
James Maxton, corporate communications manager at Nestle said: “Contrary to what has been reported, in its interim decision the UK Intellectual Property Office has accepted Cadbury’s application only for some of the goods for which Cadbury had applied and rejected it for others, in line with Nestlé’s request. We will assess the final decision once it has been issued.”
Purple gold: the value of colour
Measures taken in the battle have included Nestle employing an investigator to spot uses of purple by third parties and a survey from Cadbury, where members of the public were shown an unbranded purple chocolate bar and asked: “What do you think this is?”
During proceedings Heidi Watson, who worked in Cadbury’s marketing department, said brands such as Dairy Milk, launched in 1914, were packaged in purple and the colour was integral to the brand.
“The association of the public between purple and Cadbury and Cadbury’s use of and reputation in purple has been built from this basis,” she said.
According to Watson, Cadbury had sold £541m (€630m) worth of chocolate products branded predominantly in purple in the year to October 2004.
Although Cadbury now holds a trademark for the colour on chocolate bars, it wasn’t able to secure such rights on chocolate assortments.
The ruling will mean Nestle can still package its Quality Streets in purple.
This may come as a blow to Cadbury as its chocolate assortment offering, Milk Tray, has used purple packaging since it was introduced in 1915.
In 2002, Nestle introduced The Purple One a large version of one of Nestlé’s Quality Streets. The two parties held discussions about the use of the colour and it would seem Cadbury have accepted Nestle’s for this product.
There are only around 20 trademarks on colours in the EU. In food, Milka holds a mark for lilac on its confectionery packaging, while Heinz has rights for turquoise in baked beans.
Cadbury’s dispute with Nestle is not its first over the colour purple.
After it had been granted a trademark for the colour in Australia in 2003, it staged a six year legal battle with rival Australian chocolate maker Darrell Lea that resulted in an out-of-court settlement.
In the current ruling, submissions for changes in wording have expired and Nestle has only a few weeks to appeal.
Amendment: This article previously stated that Cadbury had failed to secure a trademark for purple in Australia. In fact, Cadbury had held the trademark since 2003. It lost in its appeal against Darrell Lea for trademark infringement, but settled out-of court in 2009.