Cadbury, the British-based chocolate company, won a color battle against rival Nestlé, which claimed Cadbury should never have been allowed to trademark its purple color back in 2008. Cadbury, which has been wrapping its chocolate in purple packaging for over 100 years to honor Queen Victoria, trademarked a distinct shad of purple using the pantone system of color. The UK Intellectual Property Office held that the particular shade of purple had a sufficiently “distinctive character” to warrant the trademark.
Overturning the trademark would invite countless rivals, including supermarkets, to use the color in their own chocolate bars, thereby creating consumer confusion and diluting the Cadbury brand. Cadbury’s power to use purple is not without boundaries, however, as the trademark is only limited to chocolate bars and drinks.
Is it fair to trademark a color when it is so closely associated to a particular brand? Does this promote color depletion, which limits the colors available to competitive brands? Does this encourage fair market competition or discourage it?
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Allowing Cadbury to trademark the purple packaging of their chocolate does seem fair. The trademark was limited to chocolate bars and drinks, which protects both Cadbury and the consumer. Many people associate certain colors with certain products, and I think it was necessary to trademark the Cadbury purple. I think this decision was fair because of the limitation. The decision would have been radically unfair if all companies were prohibited from ever using that type of purple on any product. I think it is important to protect Cadbury and the reputation they have built over the years.
This decision should have no effect on fair market competition. Cadbury is known for the purple packaging and another company should not be able to come along and copy their packaging in order to sell candy bars. It does not seem fair for a company to use Cadbury’s 100 year reputation to sell their chocolate product. I think the trademark decision was correct.
At least in the United States, the Supreme Court has held that colors can be trademarked. In Qualitex v. Jacobson, the Court held that the Lanham Act does not prevent “the use of color alone as a trademark where that color has attained “secondary meaning” and therefore identifies and distinguishes a particular brand (and thus indicates its “source”). In Qualitex, a specific shade of green utilized on dry cleaning press pads was deemed to meet the legal standard for trademark protection since the color attained secondary meaning (i.e. the color identified the source of the product or the company that manufactures the product rather than the product itself) and was thus distinctive. I am not that familiar with trademark law in the United Kingdom or Europe, but taking the decision in Qualitex to heart, I would agree with the decision of the UK Intellectual Property Office. Since Cadbury is probably the most famous chocolate brand in the UK, it is very easy to see that people would associate pantone 2865c with the Cadbury name, thus giving the color a sufficiently distinctive character. As a result, if another company were to use pantone 2865c for their chocolate products, product confusion would be likely.
This is an interesting legal concept. I worked for a Xerox company for three years before coming to law school and a huge part of my job was pantone color matching. Companies paid big money to have printing machines that could pantone color match because it was essential to their product branding. Major companies spend a huge amount of money creating their image. A specialized color being an essential part of their image. Recently, I saw a news cast about a mishaps at a Coca Cola bottling plant where the signature cans were botched and where the Coca Cola red should have been, it was replaced by white. It created such an uproar that Coca Cola actually publicly apologized to consumers. To say that a color cannot be trademarked as a part of a companies brand seems crazy to me. We recognize certain products to be genuine by their logo and colors.
Overall, I would have to say that trademarking a color, especially one that has been used for over 100 years, will not discourage legitimate fair market competition. If a company has been using a particular color for over one hundred years or for any extended period of time, the color becomes associated with the product. If an outside company is marketing a similar product with the same colors, the best case scenario is that they did not did not mean to take advantage of the other company’s popularity but they most certainly will do just that. More realistically however is the probability that the new company knew what it was doing and specifically decided on the color to steal business away from the original company. This is not fair or legitimate competition; it is an act of focused deception designed to take advantage of another’s name. It is for this reason that society has placed so much focus on things like patents and preventing fraud. Regardless of just being a color, a color such as this is just as noteworthy and effective as a brand name and as such should be granted the same level of protection, especially after 100 years of use.
Brand association is paramount to a company’s survival. If a color’s purpose is to associate it to a particular product in a narrow market, such as chocolate bars and drinks, that company should absolutely gain a monopoly on that particular color. The problem arises, however, when a color trademark extends to a broader market, such as fashion. In the recent Louboutin decision, the court held that in the fashion industry, it would be unfairly competitive to trademark a color, as it would deplete the palate of available colors. I am not aware of a similar case in the UK, but I would imagine the courts would veer in that direction if there were a case in which a company was in a similar industry. I agree, however, with the Cadbury court’s decision to uphold this color trademark in such a narrow market.
It doesn’t seem that allowing Cadbury to keep its trademarked purple would result in far fewer colors for other companies to choose from. It is a particular shade of purple that is trademarked, not all purple. With all of the shades of colors that can be created today, it is not a valid concern that there will be color depletion. Also, it is limited to only its chocolate bars and drinks. Companies that sell other things that are not candy can still use that shade and there would be no confusion. Also, based on the history and the significance of the shade of purple I think that it seems fair to let Cadbury keep the trademark for it.