The ongoing dispute, originally instigated by Nestlé, surrounding Cadbury’s trade mark applications for the colour purple has recommenced.Mr Justice Meade of the High Court recently handed down judgment in Société des Produits Nestlé S.A. v Cadbury UK Limited  EWHC 1671 (Ch).Meade J decided in Cadbury’s favour on two counts, allowing the registration of two of its applications for colour. The third application was refused.
The decision establishes in the UK that a colour is, in principle, validly registerable – the thing that harmed Cadbury’s applications was the broad descriptions which define the sign for registration. Upon first consideration it seems nonsensical that removing a description around the context of use would provide for more legal certainty. My initial reaction was that removing the description would only widen the scope of protection. However, here the Court has concluded that in not defining the context, protection is provided to the colour as a badge of origin in principle as the colour itself is definable and so there is no vagueness in it for the purposes of defining the sign. This is not dependant on the nature of use.
Going forward, applications for a colour trade mark are therefore possible in the UK where they protect a single colour as a sign or badge of origin.However, the colour definition per se is specific whilst also being very broad, so establishing that a consumer will link a non-traditional trade mark such as colour as a badge of origin will be difficult to prove, and brand owners should be prepared to produce large amounts of evidence to prove this.
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