Our creative director, Cat How, looks at the bizarre legal battles Cadbury have fought to keep the trademark for their iconic tint.
The Cadbury purple. A bold, fruity — maybe a touch brash? — purple that is synonymous with the globally-recognised British confectionary brand. The Cadbury brothers are thought to have picked the colour as a tribute to Queen Victoria, and it has been used on their chocolate wrappers for more than 100 years. Purple reign.
But this particular purple has seen legal battles with more bumps than a Picnic bar, and it is still not out of the woods yet. In 2008, Cadbury was granted a trademark for the tint (Pantone 2865c to be precise) to be used on certain chocolate goods, such as the iconic Dairy Milk. It had taken four years to get to this point - Cadbury’s had applied for it back in 2004. But Nestlé challenged the ruling, arguing that the colour was not distinctive enough to receive a trademark.
Colour registrations are notoriously difficult to obtain. This is due to the fact that it’s extremely difficult to prove exactly how much the colour has become synonymous with the brand in the mind of the consumer.
But luck was on Cadbury’s side and the Swiss group’s challenge failed. Allan James, from the UK Intellectual Property Office, claimed the colour showed enough “distinctive character” for a trademark. He believed the colour purple had been central to marketing the brand, and used in advertising campaigns to distinguish it - remember the Gorilla playing the drums the Phil Collins? Yeh.
purple reign — purple reign — purple reign — purple reign —purple reign — purple reign — purple reign — purple reign —
But the celebrations at Cadbury were short-lived - not least because the trademark was limited to using the colour only on its chocolate bars and chocolate drinks (it had not proved ‘distinctive’ enough a colour for the rest of its confectionary). And less than a year later, in 2009, it had to end a six-year legal battle over Australian confectioner Darrell Lea’s use of purple packaging with an out-of-court settlement.
But worse was yet to come. In 2013, Cadbury’s 2004 trademark application for Pantone 2685C was rejected by the Court of Appeal, following objections by Nestlé (although Nestlé had had an another appeal to the 2008 verdict rejected in 2012).
Cadbury had an earlier 1995 trademark registered on the purple shade for chocolate bars and had hoped to revise the wording to distance that from the 2013 Appeal finding. But this was not meant to be. A court in 2016 later decided the 1995 trademark could not be revised after Nestlé raised objections once more. So. Confused? This battles are still continuing, but most importantly — should we care?
I think the interesting point in this epic turf war is the unequivocal belief, by both parties, in the power of purple. The power of a particular colour. The belief that a brand colour can have so much resonance with consumers that it is worth fighting for. There is a large part of me that loves how a colour can have so much clout — with both brands coming back time and again, at huge expense, to claim ownership of something as simple as a tint.
While many might argue these legal battles have been a waste of money, I’d argue that they are about competitive advantage. They are about knowing the true value of a brand colour, and how important it is for brand recognition and brand identity. The winner of each one of these skirmishes, be it Cadburys or Nestle, know that they gain the upperhand in the marketplace. This is achieved either by denying the advantage to the other — or, I’d like to think — by knowing that owning the rights to a brand colour, and what this represents in the minds of consumers is... priceless.
— Cat How, Creative Director & Co-Founder