The Color Purple

On October 15, 2012, in Trademarks, by Brian A. Hall

UnIP (UnIntellectual Property): Trademark for the color purple in connection with all chocolate

To say that my law partner, Enrico Schaefer, loves the color purple is the equivalent of saying I simply like the Michigan State Spartans. In other words, it is a gross understatement. Anything and everything purple for Enrico, all the time. So, needless to say, this decision from the High Court following a long battle in the UK over Cadbury’s attempt to register the color purple as a trademark caught my attention for more than mere trademark reasons. Nestle had opposed Cadbury’s trademark registration on several grounds, but ultimately the High Court held that Cadbury is entitled to trademark protection for the color purple on packaging only for “milk” chocolate goods rather than “all” chocolate goods.

Cadbury had registered its color purple “chocolate in bar and tablet form; chocolate for eating; drinking chocolate; preparations for making drinking chocolate”. While the High Court recognized that the color purple (which was defined by a Pantone color and apparently sufficiently associated with Cadbury as the source), it did limit the goods to which the color purple would exclusively apply to that of milk chocolate. Thus, this is a case where Cadbury’s claimed rights were confirmed to be both IP and UnIP.

Had Cadbury actually used the purple color in connection with all of the goods listed in its registration, it may have been able to secure much broader protection. However, as a fundamental premise of trademark law, its right to exclusive use of the color purple only extends to those goods with which it has used the mark. This is particularly true when it comes to trademark protection for color, which is arguably far more difficult to establish exclusive trademark rights.

Ultimately, I do not think Enrico cares who the source of any particular good or service is, so long as it is purple. Sorry Cadbury, but you would be well-served to use your purple color across all chocolate products, not only from a trademark perspective but also from a revenue perspective, as I’m certain Enrico would buy any and all your purple products.


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