Brand protection is a curious business at times. Never more so than in the world of chocolate. It is a world in which particular identifying features of the packaging or product are, in the eyes of the brand owner at least, sufficiently distinctive that they should be protected as trade marks on their own. Lindt has protected its gold bunnies, Nestle tried to protect the shape of a KitKat, and Cadbury (owned by Mondelez) unsuccessfully tried to get a monopoly on its particular shade of purple.
The latest example of this is a different Mondelez brand, Milka, trying to assert its rights in a different shade of purple, appearing to say that if you use lilac as the dominant colour on your chocolate bar, consumers will think of Milka and buy it as a result. Whether consumers really think that is a question for the court and for the evidence presented, but these fringes of brand protection are always fascinating, and controversial.
It’s not just chocolate companies who are protective over the colour purple. Last year, pharmaceutical company Glaxo Group tried to obtain an EU trade mark for another shade of purple relating to a line of its inhaler products. This was rejected by the EU Intellectual Property Office.
Whilst it is possible to protect a colour through trade marks, it remains extremely difficult and the decision in the Milka case will be watched with interest.
John Coldham
John Coldham is UK Head of Brands and Designs, and co-heads the global practice. The Team is MIP Designs Firm of the Year 2021, having also won the award in 2019 and 2020. It is the first firm ever to win the award three years in a row.