Cadbury loses latest trade mark battle

Cadbury recently lost a trade mark battle with rival Nestle. Following the latter’s complaint, the Court of Appeal ruled against the former which tried to update its existing trade mark, intending to acquire protection for a larger ambit of confectionery. Cadbury had originally trade marked the shade Pantone 2685C, in 1995 which is still a valid trade mark pertaining to chocolate bars and tablets. However, the company’s latest endeavor to trade mark the above shade so that it ‘applied to the whole visible surface, or being the predominant colour applied to the whole visible surface, of the packaging of the goods’ was refused due to its ambiguous nature.

Lord Justice Floyd in his judgement would go on to expound that ‘[i]f allowed to be the predominant colour rather than restricted to the whole surface, the registration could cover uses of purple in extravagantly different ways… the mark could appear as stripes, spots, a large central blob, or in any other form.’ This would consequently mean the requirement that marks must resemble each other and only differ in non-distinctive ways would not be satisfied.

A Mondelez International (parent organisation) spokesperson recently stated the following: ‘We are disappointed with this decision. Our iconic colour purple has been used for Cadbury chocolate products for more than a century and is synonymous with the brand. We will continue to protect what we believe is a distinctive trademark and challenge those who attempt to pass off their products as Cadbury chocolate by using this colour.’

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