Supreme Court refuses Cadbury’s permission to appeal colour purple trademark

Cadbury has exhausted all avenues to trademark the colour purple after its application to appeal was refused by the Supreme Court.

The chocolate maker was refused the chance to register its iconic purple shade – otherwise known as Pantone 2685C – when Lords Neuberger, Wilson and Hughes found it did not raise an arguable point of law.

The March judgment brings an end to the bar wars between Nestlé and Cadbury, which had squared off over whether or not the chocolate giant could block other companies from using the colour for their sweet wrappers.

Charles Russell partner Mary Bagnall won the case for Cadbury back in 2013 at the Court of Appeal, instructing One Essex Court’s Emma Himsworth QC.

The team faced off against Wilberforce Chambers’ Michael Bloch QC, who was instructed by RGC Jenkins & Co associate Joanne Ling to lead the claim for Nestlé. Bloch has since joined Blackstone Chambers.

Cadbury had won the first battle to secure its right over the colour but lost the war against Nestlé after its 2013 Court of Appeal win was upheld by the Supreme Court. Cadbury had originally filed a UK trademark application for the purple shade in 2004, which was published in the Trade Marks journal in 2008. However, it could not be registered because Nestlé opposed it.

In a High Court case in front of Judge Birss QC in 2013, Himsworth triumphed in showing that the trademark had acquired distinctive character because there was evidence that the chocolate maker had been using the colour since 1914.

However at the Court of Appeal a year later, 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.” 

Cadbury had argued that the issue should be referred to the European Court of Justice but the court said: ”Application it is not necessary to request the Court of Justice to give any ruling, because the question is irrelevant as the court’s existing jurisprudence already provides a sufficient answer.”