13th November 2013
“Colour marks” are registered trade marks consisting of a single colour, used in abstract, as opposed to, say, being part of a logo. Big businesses (and they usually are big) like to register colour marks as a way of extending their brand protection and maximising control over their house colour schemes. So Barclays have their “Barclays Blue”, BP has its particular shade of green etc. In theory, provided you satisfy the basic trade mark application requirements, colour marks are perfectly permissible. The trouble is, there aren’t that many colours to go round, and you run into trouble if you start allowing people to monopolise them.
Most native English speakers can usefully distinguish about 12 basic colours (even if the good folks at Pantone® might want to up this figure by several orders of magnitude). At this point, we have to resist the temptation of an enjoyable diversion into colour theory, the Sapir-Whorf hypothesis and heraldry, but here’s a good practical illustration of the problem: about 10 years ago, easyGroup launched a brief foray into mobile phones. Their house colour is of course orange, but that was also the favoured shade of none other than Orange (remember them?). Even if the respective oranges weren’t quite the same, could both businesses lay claim to the same colour? Should either be entitled to exclusive rights over it?
A similar dispute has been bubbling away in the world of confectionery. Cadbury applied to register purple in respect of chocolate and that would leave it – and it alone - exclusively entitled to use purple on chocolate bars. For anyone brought up in Britain, there’s a clear, not to say fond, association between Cadbury and purple, but purple’s a pretty popular colour for chocolatiers so Nestlé felt it had to object. And it has now successfully blocked Cadbury's application.
Cadbury had specified a Pantone shade (2685C) so we all knew exactly which purple we were talking about, and had produced evidence of “acquired distinctiveness” – i.e. evidence that consumers recognised this purple as indicating Cadbury. This got them through the Trade Mark Office unscathed, and they squeaked through the High Court with little more than a restriction of their registration to milk chocolate. But, in the Court of Appeal, they slipped up on their specification that the purple was “applied to the whole visible surface, or being the predominant colour applied to the whole visible surface” of their packaging. The Court decided that this use of “predominant” left matters too uncertain and cancelled the registration.
This doesn’t mean Cadbury can’t continue to use purple, and it doesn’t mean purple won’t remain an important part of Cadbury's brand and goodwill. It also doesn’t mean colour marks are now unregistrable, but it does you’ll have to be much more careful about how you claim them. For now, though, Cadbury may have to learn to share its favourite colour with its competitors, although word is an appeal to the Supreme Court is likely.
All of which reinforces the status of colour marks as luxury purchases for the very rich or the very large, and of little relevance to ordinary businesses. There’s so much more to a brand than choice of palette (or even palate), and you need to remember to keep your brand protection strategies proportionate to your needs. BrandSoup suggests that most businesses will find better ways of spending their time and money, and we’re glad we not forced to choose between our loyalty to Dairy Milk and our secret love of Milka (moo!).