Jenkins wraps up win for Nestlé after Cadbury fails to trademark use of purple

Charles Russell’s client Cadbury has lost a court battle against Swiss rival Nestlé after it attempted to trademark the iconic purple colour of its Dairy Milk bars.  

The decision, handed down today (4 October) in the Court of Appeal, overturns a judgment last year which would have blocked other manufacturers from using the shade of purple, known as Pantone 2865c.

Wilberforce Chambers’ Michael Bloch QC was instructed by RGC Jenkins & Co associate Joanne Ling to lead the claim for Nestlé. They faced One Essex Court’s Emma Himsworth QC, who was instructed by Charles Russell partner Mary Bagnall to defend the claim for Birmingham-based Cadbury.

The Court of Appeal judges – Lord Justice Lewison, Sir John Mummery and Sir Timothy Lloyd –  ruled that Cadbury’s formulation did not comply with the requirements for trademark registration and was attempting to register “multiple signs” involving the colour.

Mummery said: “The unknown number of signs means that the representation is not of ‘a sign’. The mark applied for thus lacks the required clarity, precision, self-containment, durability and objectivity to qualify for registration.”  

“To allow a registration so lacking in specificity, clarity and precision of visual appearance would offend against the principle of certainty. It would also offend against the principle of fairness by giving a competitive advantage to Cadbury and by putting Nestlé and its other competitors at a disadvantage,” he added.

A Cadbury spokesperson said: “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.

“Our colour purple has been linked with Cadbury for a century and the British public has grown up understanding its link with our chocolate. We are studying this particular ruling and will consider our next steps which includes the possibility of an appeal.”