Of Cadbury’s Purple Brand And Why Trademark Law is Not Colour-blind

Cadbury has lost its legal battle to trademark the purple colour, Pantone 2685C to be precise.

Cadbury : Deep Purple!
Cadbury : Deep Purple!

‘Colour(s)’, though unconventional, can be trademarked.

First, a Trademark 101:

A trademark is any sign which “uniquely identifies the commercial origin of products or services.”

A colour can do the ‘unique identification’ for sure. But trademarking a colour is difficult because the ‘distinctiveness’ of a colour is difficult to prove. For this reason a ‘combination’ of colours can be easier to trademark. Think Coca Cola’s ‘Red & White’.

Now, while deciding on whether a particular ‘colour’ can be trademarked the courts have to balance 2 contentions:

  1. grant a trademark so that the consumers aren’t confused as to the origin of the product
  2. not grant a trademark to prevent monopoly over a colour

There are 2 more aspects one has to consider:

  1. The ‘colour’ of a brand can be a prominent factor in branding. This serves as a strong argument in favour of a ‘colour trademark’.
  2. At the same time colours (or distinguishable versions of them) are limited in number. Big companies might actually be able to monopolize various colours in major product lines.

The answer to whether a trademark can be granted for a colour then hinges upon 2 set of questions:

  1. Does the colour give the brand an identity?
  2. Or is the colour commonly used with that class of products? For example using ‘red’ for ‘chilly powder’?

If the second question is answered in affirmative, a trademark will not be granted. Here, the colour is merely ‘descriptive’ and ‘functional’. Think ‘green’ and ‘organic’.

If the first question is answered in affirmative, we are in business. Here there is a ‘secondary meaning’ assigned to the colour. The rule in Australia is one that appeals to similar logic: if the colour serves only to identify the brand, it’s trademark-able. The colour should NOT serve any other function.

Some of you might rise in protest now. The rioters, I hear, are questioning: if a company ‘trademarks’ a colour does that mean that the company ‘owns’ the colour?

No! It merely allows the company to use that colour in its ‘industry’.

So the final verdict is: Yes, colours can serve as a trademark. But it’s mighty difficult to get one.

So why did Cadbury’s Pantone 2685C which was a Trademark Shubh Aarambh (the colour was granted a trademark initially) bite the dust in the end?

Clearly, the above-mentioned block of purple colour with the word ‘chocolate’ would instantly remind anyone of ‘Cadbury’. So why did Cadbury loose out?

Cadbury lost because it was trying to get a trademark registration on “multiple signs”, involving using the purple shade in many different graphical permutations rather than a single, consistently presented block of colour[1].

[Guest article contributed by Tanuj Kalia, VP Marketing at Vakilsearch.]

[1] The Guardian, “Cadbury’s attempt to trademark Dairy Milk purple blocked”,  at http://www.theguardian.com/business/2013/oct/04/cadbury-dairy-milk-purple-trademark-blocked

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