| Having now read the Nestle v Cadbury
decision I'm not quite as frustrated with this news but I still find it
disquieting. From the decision,
Section 1(1)(a) of the Trade
Marks Act 1994 is as follows:
16. Trade Marks
1. - (1) In this
Act a "trade mark" means any sign capable of being represented graphically which
is capable of distinguishing goods or services of one undertaking from those of
other undertakings.
A trade mark may, in particular, consist of words
(including personal names), designs, letters, numerals or the shape of goods or
their packaging.
I don't have a problem with Cadbury having the
rights to the colour when used in conjunction with either
their name,
the
names of their products, or
the particular designs which incorporate that
colour in the packaging or marketing for their products or their
brand
Though there is the restriction of having this colour in association
with, from the decision,
Milk chocolate in bar and tablet form;
milk chocolate for eating; drinking chocolate; preparations for making drinking
chocolate.
I dislike the decision because I see it as a foot in
the door.
If some other chocolate maker uses a colour purple which is
close to pantone 2685C can Cadbury object by saying that it is too close to
their trademark? The mark applies "to the whole visible surface, or being the
predominant colour applied to the whole visible surface". What proportion of
the whole visible surface is defined as predominant and would Cadbury be tempted
to push the definition if another product had only a small proportion of the
visible surface in purple with the rest of the packaging in white? The purple
could possibly be said to "stand out" which may, depending on your point of
view, mean it is predominant.
The ruling said that Cadbury cannot use the
trademark colour for their assortments because they haven't, paraphrasing, been
doing so in the past so the colour isn't associated with their assortments, but
if they start using the colour for those assortments then in the future will
they be able to widen the door? Could they start creating other products, eg
dresses, using that colour then after a few years have their trademark expanded
into these other product lines? (I suggest dresses because if you google
"cadbury purple" there are a number of hits which refer to bridesmaid dresses or
wedding themes.)
Will this now lead to other companies that have been using
the same colour for many years being able to say, "Hey, that's our colour! We'll
trademark it"
Trademarking a colour without any symbols or shape seems, to
me, to not meet the standard of what a trade mark is for.
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