Cadbury is feeling blue over purple: Cadbury v Nestle

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The long-running battle between Cadbury and Nestlé continues. The battle began in 2004, when Cadbury filed a UK application to register a trademark for a particular shade of purple (Pantone 2685C) in Class 30. Initially, the UK Intellectual Property Office (IPO) refused registration on the basis that the mark was devoid of distinctive character. Cadbury filed evidence demonstrating use since 1914, which satisfied the IPO that the mark had acquired distinctiveness and it was subsequently accepted. The specification of goods of the application read: ‘The colour purple [Pantone 2685C], as shown on the form of application, applied to the whole visible surface, or being the predominant colour applied to the whole visible surface, of the packaging of the goods.’

Nestlé’s opposition to the mark proceeding to registration failed.

A disgruntled Nestlé appealed to the High Court (HC). Its primary argument was that the mark fell foul of Article 2 of the Trade Marks Directive (2007/95/EC), i.e. the mark was not a ‘sign’ that could be ‘represented graphically’. Nestlé argued that the description of the mark could cover a number of different ‘signs’ and the ‘unknown number of signs means that the representation is not “of a sign”’. The HC upheld the IPO’s decision to allow registration in relation to milk chocolate products. Nestlé appealed to the Court of Appeal (CA). The appeal was heard alongside the Spear v Zynga case, given that the two cases raised many similar points…

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