Cadbury’s purple and Scrabble appeals: not one sign

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In two separate judgments but conjoined appeals, the UK Court of Appeal last Friday (4 October 2013) reversed previous decisions and cancelled Cadbury’s UK registration for the colour purple and upheld the cancellation of Mattel’s UK registration for a Scrabble tile. The connection lies in the interpretation of Article 2 of the Trade Marks Directive (2008/95/EC).

Until now, Cadbury had successfully persuaded the UKIPO and the High Court that its application satisfied the CJEU’s well-established criteria of what amounts to a sign capable of graphical representation so as to be registrable. These are that the representation of the sign must have the required clarity, precision, self-containment, durability and objectivity for both the registrar and competitors to know what is covered.

Cadbury’s application showed a particular purple colour on the form (which looks more like a blue on the online register), identified it using the Pantone colour code 2685C and, critically in this case, included a description that the colour is ‘applied to the whole visible surface, or being the predominant colour applied to the whole visible surface, of the packaging of the goods’…

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