Cadbury retains hold over its trademarked shade of purple

Pantone 2685 is Cadbury's special colour.

After fighting for almost eight years, Cadbury has finally won a high court battle over its trademark of a certain shade of the colour purple.

The chocolate company applied for the trademark back in October 2004, registering:

The colour purple (Pantone 2685C), as shown in the form of application, applied to the whole visible surface or being the predominant colour applied to the whole visible surface, of the packaging of the goods [for] chocolate in bar and tablet form, chocolate confectionery, chocolate assortments, cocoa-based beverages, chocolate-based beverages, preparations for chocolate-based beverages, chocolate cakes.

Pantone 2685C is also represented by the hex colour code #3B0084, or RGB 59-0-132. Cadbury has got a lot of stick over the intervening eight years for, effectively, trademarking a certain wavelength of the electromagnetic spectrum, but the protected aspect is actually much narrower than has previously been reported. Anyone can use the purple for anything non-chocolate-related, and even other chocolate manufacturers can use it provided it isn't "the predominant colour applied to the whole visual surface" of the packaging.

Nonetheless, Nestlé, Cadbury's biggest rival, opposed the trademark. Their legal argument was that that shade of purple had no distinctive character, had been granted for too broad a range of goods, and had been applied for in bad faith, claiming that Cadbury never intended to use the mark for "the whole visible surface". In addition, Nestlé can't have avoided noticing that one of its own subsidiaries, Wonka, uses an eerily similar shade of purple in its own branding (although Wonka's is #5C2A88). Nestlé won in part, with the Intellectual Property Office ruling that Cadbury's trademark would only apply to chocolate bars and drinking chocolate, but their appeal against even that aspect is what was finally overturned yesterday, when the High Court ruled that the colour has been distinctive of Cadbury for milk chocolate since 1914.

A Cadbury spokesman told Design Week:

We welcome the decision of the High Court which allows us to register as a Trade Mark and protect our famous Colour Purple across a range of milk chocolate products. Our Colour Purple has been linked with Cadbury for more than a century and the British public have grown up understanding its link with our chocolate.

Colour protections are not unique to chocolate bars, but they have had varying degrees of success in other areas. BP attempted to trademark Pantone 348C, a shade of green, in over 20 countries, but slowly had to back away. In Britain, it lost a case it brought in 2000 against a Northern Irish oil company which was also using green on its petrol stations, and has since effectively abandoned Pantone 348C by redefining "BP Green", which is now officially Pantone 355C.

The Easy conglomerate, owners of the travel company easyJet, uses Pantone 021C, but famously got into trouble with the mobile phone company Orangewhich has trademarked the similar shade Pantone 151C – when it started easyMobile in 2004.

It's important to note, though, that all of these protections are specific to sectors. As the BBC put it:

Cadbury's, for example, can argue that their famous shade of purple cannot be used by other chocolate makers. They could not stop a firm making hats from using the same shade though, as they would be in different businesses.

Wearing Cadbury's purple would probably be a bit of a fashion faux-pas, but it's not actually illegal yet.

The protected shade of purple.

Alex Hern is a technology reporter for the Guardian. He was formerly staff writer at the New Statesman. You should follow Alex on Twitter.

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What it’s like to fall victim to the Mail Online’s aggregation machine

I recently travelled to Iraq at my own expense to write a piece about war graves. Within five hours of the story's publication by the Times, huge chunks of it appeared on Mail Online – under someone else's byline.

I recently returned from a trip to Iraq, and wrote an article for the Times on the desecration of Commonwealth war cemeteries in the southern cities of Amara and Basra. It appeared in Monday’s paper, and began:

“‘Their name liveth for evermore’, the engraving reads, but the words ring hollow. The stone on which they appear lies shattered in a foreign field that should forever be England, but patently is anything but.”

By 6am, less than five hours after the Times put it online, a remarkably similar story had appeared on Mail Online, the world’s biggest and most successful English-language website with 200 million unique visitors a month.

It began: “Despite being etched with the immortal line: ‘Their name liveth for evermore’, the truth could not be further from the sentiment for the memorials in the Commonwealth War Cemetery in Amara.”

The article ran under the byline of someone called Euan McLelland, who describes himself on his personal website as a “driven, proactive and reliable multi-media reporter”. Alas, he was not driven or proactive enough to visit Iraq himself. His story was lifted straight from mine – every fact, every quote, every observation, the only significant difference being the introduction of a few errors and some lyrical flights of fancy. McLelland’s journalistic research extended to discovering the name of a Victoria Cross winner buried in one of the cemeteries – then getting it wrong.

Within the trade, lifting quotes and other material without proper acknowledgement is called plagiarism. In the wider world it is called theft. As a freelance, I had financed my trip to Iraq (though I should eventually recoup my expenses of nearly £1,000). I had arranged a guide and transport. I had expended considerable time and energy on the travel and research, and had taken the risk of visiting a notoriously unstable country. Yet McLelland had seen fit not only to filch my work but put his name on it. In doing so, he also precluded the possibility of me selling the story to any other publication.

I’m being unfair, of course. McLelland is merely a lackey. His job is to repackage and regurgitate. He has no time to do what proper journalists do – investigate, find things out, speak to real people, check facts. As the astute media blog SubScribe pointed out, on the same day that he “exposed” the state of Iraq’s cemeteries McLelland also wrote stories about the junior doctors’ strike, British special forces fighting Isis in Iraq, a policeman’s killer enjoying supervised outings from prison, methods of teaching children to read, the development of odourless garlic, a book by Lee Rigby’s mother serialised in the rival Mirror, and Michael Gove’s warning of an immigration free-for-all if Britain brexits. That’s some workload.

Last year James King published a damning insider’s account of working at Mail Online for the website Gawker. “I saw basic journalism standards and ethics casually and routinely ignored. I saw other publications’ work lifted wholesale. I watched editors...publish information they knew to be inaccurate,” he wrote. “The Mail’s editorial model depends on little more than dishonesty, theft of copyrighted material, and sensationalism so absurd that it crosses into fabrication.”

Mail Online strenuously denied the charges, but there is plenty of evidence to support them. In 2014, for example, it was famously forced to apologise to George Clooney for publishing what the actor described as a bogus, baseless and “premeditated lie” about his future mother-in-law opposing his marriage to Amal Alamuddin.

That same year it had to pay a “sizeable amount” to a freelance journalist named Jonathan Krohn for stealing his exclusive account in the Sunday Telegraph of being besieged with the Yazidis on northern Iraq’s Mount Sinjar by Islamic State fighters. It had to compensate another freelance, Ali Kefford, for ripping off her exclusive interview for the Mirror with Sarah West, the first female commander of a Navy warship.

Incensed by the theft of my own story, I emailed Martin Clarke, publisher of Mail Online, attaching an invoice for several hundred pounds. I heard nothing, so emailed McLelland to ask if he intended to pay me for using my work. Again I heard nothing, so I posted both emails on Facebook and Twitter.

I was astonished by the support I received, especially from my fellow journalists, some of them household names, including several victims of Mail Online themselves. They clearly loathed the website and the way it tarnishes and debases their profession. “Keep pestering and shaming them till you get a response,” one urged me. Take legal action, others exhorted me. “Could a groundswell from working journalists develop into a concerted effort to stop the theft?” SubScribe asked hopefully.

Then, as pressure from social media grew, Mail Online capitulated. Scott Langham, its deputy managing editor, emailed to say it would pay my invoice – but “with no admission of liability”. He even asked if it could keep the offending article up online, only with my byline instead of McLelland’s. I declined that generous offer and demanded its removal.

When I announced my little victory on Facebook some journalistic colleagues expressed disappointment, not satisfaction. They had hoped this would be a test case, they said. They wanted Mail Online’s brand of “journalism” exposed for what it is. “I was spoiling for a long war of attrition,” one well-known television correspondent lamented. Instead, they complained, a website widely seen as the model for future online journalism had simply bought off yet another of its victims.