Purple Power? A trade mark monopoly gains momentum

The decision is dated 20 October and this Kat has been ever-so-slightly ignoring it ever since, because (i) it didn't seem so important at the time and (ii) it was already attracting plenty of coverage in both the specialist media and the popular press.  However, his email in-tray is literally sagging under the weight of people either sending him links to it or asking him why he hasn't reported it yet.  So, bowing to the inevitable, this Kat gives you Cadbury Ltd's Application, Case O-358-11, a 41-page decision of the excellent Allan James who (this blogger guesses) is senior enough to make sure of getting at least a decent share of the fun cases that require the attention of an Intellectual Property Office Hearing Officer.

The confectionery company Cadbury, now subsumed by Kraft, applied to register the shade of purple featured above, right, as a UK trade mark for a range of chocolate-based products. Deadly rival Nestlé opposed, citing pretty well every ground of opposition known to mankind, including bad faith and lack of distinctiveness. Cadbury fought its corner vigorously, basing its application on the last resort of the dodgy trade mark proprietor --distinctiveness acquired through use [this is about as close as IP law gets to letting a litigant base its case on public popularity, notes Merpel].

According to Allan James, mainly rejecting the opposition, Cadburys' application represented the mark with sufficient clarity and precision (by means of a Pantone reference and a verbal description of the colour as being used on the whole surface of packaging, or as a predominant colour on it). and that the sign fulfilled all known criteria of registrability.  The claim as to bad faith was a slightly silly one: Cadbury, it was argued, did not actually intend to use the colour on the whole visible surface of any packaging. It could however be safely assumed that the "entire surface" of packaging would mean everything except the product name itself, which might well be written in a different colour since no-one could read it if it wasn't.  Nestlé did, however, succeed a little bit: Cadburys could only have their purple mark for goods in respect of which there was indeed evidence of acquired distinctiveness: chocolate in bar and tablet form; eating chocolate; drinking chocolate; preparations for making drinking chocolate.

Though he has no inside knowledge, this Kat can't imagine that this decision will go unappealed, being aware of the zest with which Nestlé has protected both its brand portfolio against real and imagined threats in the past. 

Deep Purple here
The Colour Purple here
Purple chocolate colouring here
Comment by John Langlois on IP Brief here