Lawyers for rival Nestlé managed to overturn a previous judgment that would have prevented other manufacturers from wrapping their products in the same Dairy Milk tone.
The row revolved around a specific shade of purple – defined as Pantone 2685C – which the Birmingham-based manufacturer maintains it has used since the First World War.
It is used on its bestselling Dairy Milk bars and other sweets.
The appeal court in London did not rule that pure colours alone cannot be used as trademarks but said Cadbury’s definition of the “predominant colour” of its packaging fell short of the necessary precision.
The company, the judges said, was attempting to register “multiple signs”, involving using the purple shade in many different graphical permutations rather than a single, consistently presented block of colour.
The judges said: “In brief, the description of the mark as including not just the colour purple as a sign, but other signs, in which the colour purple predominates over other colours and other matter, means that the mark described is not ‘a sign’.
“There is wrapped up in the verbal description of the mark an unknown number of signs. That does not satisfy the requirement of ‘a sign’ within the meaning of Article 2, as interpreted in the rulings of the CJEU, nor does it satisfy the requirement of the graphic representation of ‘ a sign’, because the number of signs means that the representation is not ‘a sign’.”
Cadbury had argued that trademarking Pantone 2685C would not give it an unfair competitive advantage over other chocolate manufacturers as so many other shades were available.
