Here's an interesting question for you: can you trademark a colour? The answer should be "yes" is the contention of legendary British chocolate company, Cadbury, who have been in litigation on this very issue for the best part of the last eight years.
The British Intellectual Property Office (BIPO) agreed that this particular "royal purple" color (Pantone 2685C) was part of its trademark, and granted exclusive rights to Cadbury back in 2008, which was immediately contested by Nestle, a major competitor brand. This set off a legal battle between Kraft Foods Inc. (owners of Cadbury since 2010) and Nestle that has only just been settled this week.
In a landmark decision, the High Court of England ratified the earlier ruling by the BIPO and clarified that Cadbury will be the only company allowed to use that distinctive color on candy bar wrappers. Cadbury were naturally delighted and released the following statement:
"We welcome the decision of the high court which allows us to register as a [trademark] and protect our famous colour purple across a range of milk chocolate products. Our colour purple has been linked with Cadbury for more than a century and the British public have grown up understanding its link with our chocolate."
It's a very intriguing argument, particularly today. When Cadbury started using this colour effectively a century ago, we were far from the digital age of today where you and I can go onto our computer and have full access to a massive colour spectrum on any of quite a few programs. These colors were created by someone else, so why would we have the right to trademark one of them as our own, and claim it as part of our brand?
But then again, this royal purple has been in circulation for about one hundred years, and back then, it would have required original design to create and print that particular colour because it came from somebody's head, not their computer. History does count also, and after a century, it is unquestionable that this colour is burned into all of our memories as pure chocolate and totally Cadbury.
So while the colour itself cannot be trademarked, per se, if it is associated directly with a brand's products then other confectionery manufacturers should be prevented from using it. In any case, why would you want to put another company's colour on your products, other than to take advantage of their clientele? It's almost an admission of either brand jealousy or wanting to mislead the public, or both.
Nestle should not pursue this any further, and should get on with life. Guess what? This has opened the door in a way, in that Nestle could now insist that the distinctive red and white wrapper of KitKat should also be trademarked, for example. But Cadbury was smart because they took one major colour and associated it with a whole slew of their products, and in fact with the entire brand. This was a contributing factor in the decision by the High Court, I am sure.
The outcome underlines the fact that while words and logos are key components of a company's branding, there is an increasing significance being attributed to colour trademarks. We here at EU have always felt that way, which is why we came up with a brand identifier that includes logo, words and colour. It is our hope that one day that distinctive EU umbrella triangle in double green and white will be as indisputably linked to EU books as royal purple is to Cadbury.
Having said that, don't ask me what the Pantone numbers for our two greens are; we don't think we will be heading off to court to fight for them anytime soon! ;) - Kevin Mc
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