The UK Supreme Court recently rejected Cadbury’s right to appeal against an October 2013 Court of Appeal ruling in Nestlé’s favor.
This means that Cadbury cannot register its trademark for purple shade Pantone 2685C.
Nestlé ‘welcomes’ decision; Cadbury ‘disappointed’
James Maxton, corporate communications at Nestlé UK, said: “We welcome the Court of Appeal’s decision to uphold Nestlé’s objection against Mondelez’s proposal to trade mark its Dairy Milk “Purple” colour across a broad range of products. We believe this was the right outcome from a legal perspective.”
A Cadbury spokesperson confirmed there were no more avenues for appeal. He reiterated a statement given after the Court of Appeal decision.
Cadbury’s purple turf wars
Cadbury ended a six-year legal battle over Australian confectioner Darrell Lea’s use of purple packaging in 2009 with an out-of-court settlement. Cadbury’s parent Kraft (now Mondelez) also holds a trademark for lilac for its Milka brand and has fought cases against alleged misuse by Stollwerck in Poland and Chocolates Bariloche in Argentina.
"We are disappointed by this latest decision but it’s important to point out that it does not affect our long held right to protect our distinctive colour purple from others seeking to pass off their products as Cadbury chocolate.”
Cadbury hopes that it can still stop competitors using its purple for milk chocolate under the common law principle of “passing off”.
Cadbury filed a UK trademark application for the purple shade Pantone 2685C in 2004. The application was allowed and published in the Trade Marks Journal in 2008, but because it was opposed by Nestlé it could not be registered.
A UK’s Intellectual Property Office hearing in 2011 dismissed Nestlé claims that the color was not distinctive to Cadbury, but limited the amount of goods covered by the trademark.
Nestlé then took the case to the UK High Court, but that too was dismissed. However, Cadbury’s trademark was again diluted to cover only milk chocolate as the color lacked identity to Cadbury for dark, white and plain chocolate.
Nestlé then took the case to the Court of Appeal, which ruled in its favor.