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Court of Appeal reverses Cadbury purple trade mark decision

7 October 2013

The Court of Appeal has taken a u-turn on an earlier decision, granting Cadbury a trade mark registration for a shade of purple (Pantone 2685C) synonymous with its Dairy Milk chocolate bar.

In the present case, Sir John Mummery stated the mark “lacks the required clarity, precision, self-containment, durability and objectivity to qualify for registration”. The Cadbury mark failed because, although it is established defining a colour by reference to its Pantone number is precise, the description accompanying the mark was not. The words “being the predominant colour applied to the whole visible surface, of the packaging of the goods” suggested the colour could be used in combination with other colours in a variety of ways.

This is quite a harsh outcome for Cadbury given its actual use of the mark and the clear evidence of distinctiveness which it previously adduced. The decision does, however, serve as a reminder as to the importance of accompanying descriptions, particularly in relation to non-conventional marks.

Please also see our commentary on the joined case of Mattel v Zynga.

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