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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The tale of Battersea power station shows how affordable housing is lost

Initially, the developers promised 636 affordable homes. Now, they have reduced the number to 386. 

It’s the most predictable trick in the big book of property development. A developer signs an agreement with a local council promising to provide a barely acceptable level of barely affordable housing, then slashes these commitments at the first, second and third signs of trouble. It’s happened all over the country, from Hastings to Cumbria. But it happens most often in London, and most recently of all at Battersea power station, the Thames landmark and long-time London ruin which I wrote about in my 2016 book, Up In Smoke: The Failed Dreams of Battersea Power Station. For decades, the power station was one of London’s most popular buildings but now it represents some of the most depressing aspects of the capital’s attempts at regeneration. Almost in shame, the building itself has started to disappear from view behind a curtain of ugly gold-and-glass apartments aimed squarely at the international rich. The Battersea power station development is costing around £9bn. There will be around 4,200 flats, an office for Apple and a new Tube station. But only 386 of the new flats will be considered affordable

What makes the Battersea power station development worse is the developer’s argument for why there are so few affordable homes, which runs something like this. The bottom is falling out of the luxury homes market because too many are being built, which means developers can no longer afford to build the sort of homes that people actually want. It’s yet another sign of the failure of the housing market to provide what is most needed. But it also highlights the delusion of politicians who still seem to believe that property developers are going to provide the answers to one of the most pressing problems in politics.

A Malaysian consortium acquired the power station in 2012 and initially promised to build 517 affordable units, which then rose to 636. This was pretty meagre, but with four developers having already failed to develop the site, it was enough to satisfy Wandsworth council. By the time I wrote Up In Smoke, this had been reduced back to 565 units – around 15 per cent of the total number of new flats. Now the developers want to build only 386 affordable homes – around 9 per cent of the final residential offering, which includes expensive flats bought by the likes of Sting and Bear Grylls. 

The developers say this is because of escalating costs and the technical challenges of restoring the power station – but it’s also the case that the entire Nine Elms area between Battersea and Vauxhall is experiencing a glut of similar property, which is driving down prices. They want to focus instead on paying for the new Northern Line extension that joins the power station to Kennington. The slashing of affordable housing can be done without need for a new planning application or public consultation by using a “deed of variation”. It also means Mayor Sadiq Khan can’t do much more than write to Wandsworth urging the council to reject the new scheme. There’s little chance of that. Conservative Wandsworth has been committed to a developer-led solution to the power station for three decades and in that time has perfected the art of rolling over, despite several excruciating, and occasionally hilarious, disappointments.

The Battersea power station situation also highlights the sophistry developers will use to excuse any decision. When I interviewed Rob Tincknell, the developer’s chief executive, in 2014, he boasted it was the developer’s commitment to paying for the Northern Line extension (NLE) that was allowing the already limited amount of affordable housing to be built in the first place. Without the NLE, he insisted, they would never be able to build this number of affordable units. “The important point to note is that the NLE project allows the development density in the district of Nine Elms to nearly double,” he said. “Therefore, without the NLE the density at Battersea would be about half and even if there was a higher level of affordable, say 30 per cent, it would be a percentage of a lower figure and therefore the city wouldn’t get any more affordable than they do now.”

Now the argument is reversed. Because the developer has to pay for the transport infrastructure, they can’t afford to build as much affordable housing. Smart hey?

It’s not entirely hopeless. Wandsworth may yet reject the plan, while the developers say they hope to restore the missing 250 units at the end of the build.

But I wouldn’t hold your breath.

This is a version of a blog post which originally appeared here.

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