Sunday, November 4, 2012

Cadbury Wins Lenthy Trademark Battle with Nestle for the Color Purple

www.canadianbusiness.com
If  Louboutin (red) and Harrods (green) can, Cadbury (purple) too. Alas, we are at the end of the long dispute between Nestle and Cadbury, two chocolate confectionary power houses, for the color purple, which dates back to 2008 when Veyvey, Switzerland-based Nestle opposed Cadbury's initial application for a color trademark.  A high court in the United Kingdom recently ruled that Cadbury now has the exclusive right to a certain shade of purple (Pantone 2685C) on its dairy milk packaging. This point is interesting because the first district court in the Louboutin case opinioned that the Pantone color identification did not matter. Of course the Louboutin case is a different jurisdiction entirely (NY, USA) and the Louboutin decision was partially overturned after appealed, but I wonder if that point is still valid in the U.S.

Anyhow, a look at what the Judge in the chocolate dispute had to say:

“Since single colours per se are, as a matter of European law, capable of being signs … (i.e. they are capable of being a sign, capable of being represented graphically and capable of distinguishing) then … in my judgment the colour purple (Pantone 2685C) applied to the whole visible surface, or being the predominant colour applied to the whole visible surface, of the packaging of chocolate, is capable of being a sign within [the terms of EU trade mark law]”.
                                                                                                           - David Reilly at dreilly.ie

In October 2004, Cadbury applied for the trademark but its rival Nestle argued that colors could not be practically trademarked for commercial advantage. Well now, isn't Cadbury glad for the Louboutin, Tiffany, and Harrods ruling which all hold that the acquired user have rights to their prospective colors? Or at least there is more supporting law on the books for other companies who will face the same trademark color dispute.

Although a color victory for Cadbury, Nestle calls it a partial victory for Nestle and Cadbury because the Judge restricted the trademark to milk chocolate in bar and tablet form; milk chocolate for eating; drinking chocolate and preparations for making drinking chocolate. Nestle spokesman James Maxton says that the ruling protects Nestle brands by further limiting the range of goods for which Cadbury's application may be registered.

Fashion Legallaire's assesment: So since Cadbury can exclusive wrap it's milk chocolate in purple, that leaves other companies free to wrap their dark and or white chocolate in purple, but just not milk chocolate.

No comments:

Post a Comment