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Cadbury and the Colour Purple

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Having been contested in the UK Courts for the last 8 years, the Cadbury decision of 1 October 2012 (Société des Produits Nestlé SA v Cadbury UK Ltd [2012] EWHC 2637 (Ch), 1 October 2012.) adds a little clarity to the murky waters of registrability of colour marks in UK trade mark law.

Guided largely by the Libertel decision in the CJEU (namely, that single colour marks may be registrable per se if described clearly and classified precisely through an internationally-recognised colour code system such as Pantone), Judge Birss QC moved one infant-step further and held that the context of the case must be assessed before any decision can be made on the registrability of a colour mark. Such assessment of the context of a case may include consideration of the limited availability of colours in relation to the goods and/or services in question and public perception of the mark. In Cadbury’s case, after consideration of the context of the case, its shade of purple was held by the High Court to be registrable in connection with milk chocolate products, though not the broader category of chocolate products in general.

Clearly, with around 100 years of evidence of use to support Cadbury’s claim to registration, the effects of this decision must be interpreted with some caution, though the focus on a general assessment of the context of a case is useful for other applicants wishing to register colour marks in the future.

Nick Bowie 17 October 2012

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