Nestle tasted sweet victory this month following a nine year legal battle against Cadbury’s attempt to trademark the colour purple for a range of its chocolate based goods.
In 2004, confectionary giant Cadbury applied to register a trade mark for the colour purple – more specifically, Pantone 2685C "applied to the whole visible surface, or being the predominant colour applied to the whole visible surface, of the packaging of the goods" for a variety of chocolate–based products in Class 30. Nestle subsequently opposed the application on the ground that it was so broad it would prevent other companies from using a portion of the spectrum as the basis of their packaging.
Dissatisfied with the outcome, Nestle appealed to the High Court on the basis the decision was at odds with the requirements posed by Article 2 of the Trade Marks Directive 2008/95/EC (the "Directive"); that is to say the colour purple did not constitute a sign and nor was it capable of graphical representation. However, the High Court also found in favour of Cadbury, holding that the chocolate-maker was entitled to register the colour purple as a trade mark in respect of its milk chocolate confectionary. The High Court did however limit the scope of the permitted registration, holding that it could not extend to other types of chocolate or goods.
Undeterred, Nestlé brought its case to the Court of Appeal, arguing that the trial Judge had erred in relation to the requirements under Article 2 of the Directive. Nestle’s complaint was upheld on this occassion, with Judge Mummery agreeing that both the Hearing Officer and the trial Judge had erred in principle and had misunderstood the verbal description of the graphic representation of the mark for which application was made. In the judgment of the Court of Appeal (Societé des Produits Nestlé SA v. Cadbury UK Limited  EWCA Civ 1174) Judge Mummery held that "to allow a registration so lacking in specificity, clarity and precision of visual appearance would offend against the principle of certainty" and that it would provide "a competitive advantage" to Cadbury.
The effect of the ruling of the Court of Appeal is that, provided no confusion is created, Nestlé – along with all other chocolatiers – are free to use the colour purple on their packaging without facing infringement action from Cadbury!!
The Hearing Officer subsequently found that Cadbury was only entitled to register the mark in respect of goods for which there was evidence of acquired distinctiveness, namely chocolate in bar and tablet form; eating chocolate; drinking chocolate; and preparations for making drinking chocolate.