It isn't any easier to trademark the color purple than the color red, apparently. Several months after Louboutin's failed effort to trademark the color red broadly for shoe soles in the US, Cadbury has been knocked down by a UK court over its attempts to trademark the use of purple in its chocolate wrappers.
Cadbury lost its five-year court battle to Nestle over whether Cadbury could register a distinctive shade of purple as a trademark, a specific shade—defined as Pantone 2685C—that it has used on its Dairy Milk bars and other sweets since World War I.
"The mark ... lacks the required clarity, precision, self-containment, durability and objectivity to qualify for registration," one of the judges in the case said, according to The Guardian.
The court denied Cadbury's attempt to register what the court called "multiple signs" for its trademark, involving using the purple shade in many different graphic permutations rather than a single, consistently presented block of color.
Everyone recognizes how key a color can be to a logo or brand identification: vivid red with a can of Coca-Cola, for example. And Cadbury noted that "the British public has grown up understanding its link with our chocolate."
Cadbury further stated that the ruling "does not affect our long held right to protect our distinctive color purple from others seeking to pass off their products as Cadbury chocolate." Just in case Nestle had the thought. And Cadbury reserved the right to "the possibility of an appeal."
In the meantime, the projectors of trademark rights to color have gone zero-for-two in notable cases this year. The US Patent Trade Office denied an earlier attempt by luxury shoe maker Louboutin to broad protection of a red, lacquered outsole on a high-fashion woman's shoe as distinctive and integral to the brand. After a successful appeal, the brand can trademark applications "in which the red lacquered outsole contrasts in color with the adjoining 'upper' of the shoe." Yves Saint Laurent objected.
But this setback doesn't mean Cadbury's purple reign is over. It just means the brand's competition with Nestle will move on to all the other areas where differences in chocolate formulation, packaging, pricing and merchandising create shifts in sales and market share.