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Colours as Trade Marks

Colours as Trade Marks

02/12/11

In 2004, Cadbury applied to register as a UK trade mark 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 the goods. The mark made it through to acceptance and advertisement in 2008 on the basis of distinctiveness acquired through use.

However, Nestle opposed the application on absolute grounds claiming that the mark was not capable of distinguishing the goods of one undertaking from those of others since it is just a single colour, and colours are commonly used in trade;  that it could take numerous forms of appearance so is not a ‘sign’; that it is not capable of being graphically represented; is devoid of any distinctive character; and that it had not acquired a distinctive character through use.

A two-day Hearing was held during which the voluminous evidence filed both in the prosecution of the application and during the opposition proceedings was considered in detail leading to a 41 page decision.

The decision partially rejected the opposition and allowed registration of the mark but only for a restricted specification of “chocolate in bar and tablet form; eating chocolate; drinking chocolate; preparations for making drinking chocolate”.

It remains to be seen if an appeal follows from either party.