Only a month after a United States Court of Appeals issued the emphatic opinion in Christian Louboutin S.A. v. Yves Saint Laurent America Holding, Inc., No.11-3303-cv (2d Cir. September 5, 2012) preserving a place for single colors in the world of trademarks, Europe weighs in similarly on the issue. Dismissing an appeal for Nestle, the world’s biggest food company, a London judge found that the color purple is distinctive for Cadbury Dairy Milk bars and deserves to be registered as a trademark.
The dispute between the chocolate giants dates back to 2008 when Nestle unsuccessfully opposed Cadbury’s application to register purple as a trademark for chocolate in 2004. Nestle then appealed to England’s High Court, arguing that the color purple should not be protected as a trademark. The Honorable Judge Colin Ian Birss QC disagreed, stating that “[th]e evidence clearly supports a finding that purple is distinctive of Cadbury for milk chocolate.” Cadbury submitted proof that the company’s Dairy Milk bar has been wrapped in purple since 1914 and consistently uses the color for its other products as well. The Court agreed that the public associates purple with Cadbury’s chocolate, and that the color has acquired distinctiveness in connection with Dairy Milk bars.
However, just as the Second Circuit in Louboutin did in the States last month, the UK Court limited the scope of protection that the color would receive. Judge Birss said that while purple is synonymous with the Dairy Milk bar, “the trademark wouldn’t apply to boxes of chocolate, or other [Cadbury] products such as white or dark chocolate.”