Sunday, March 27, 2005

Cadbury Trademarks the Colour Purple

Seen while browsing

Boing Boing: A Directory of Wonderful Things reports:
"and they're not alone How does a company trademark a color? Boing Boing reader Rob says, Because it's Easter, I find myself in the possession of a Cadbury chocolate product. What do I find on the back? 'Cadbury, ellipse device, dairy milk, the glass and a half device and THE COLOUR PURPLE are Cadbury Limited trademarks used under licence in New Zealand by Cadbury Confectionery Ltd.' All our purple are belong to Cadbury Confectionery Ltd.!"
They've put in a few updates noting other colour copyrights from around the world.


As this is a New Zealand trademark I thought I'd search for other NZ trademarks on colours. First up, Simpson Grierson have a PDF discussion analysis based on the trademark commissioner's ruling on Telecom's earlier failed attempt to trademark the colour yellow. This sets forth a number of principles including that the colour must be defined by a classification system such as the Pantone system. This was followed by an ominous note that the requirements would differ from industry to industry.

Chocolate, on the other hand seems to have different rules, and Cadbury have succeeded. Norris Ward McKinnon have a piece on the history of the Cadbury claim pointing out that they have been trying to protect it since 1999, and had a run-in with the makers of Harry Potter chocolates. They finish with
"Trade mark changes that came into force last year have relaxed the boundaries of what things may be trade marked. Many colours are now trade marks owned by various companies, and associated with various products. The colour green is now exclusively BP's in relation to petrol station services. The colour yellow cannot be used by any of Telecom's rival printers of telephone directories. No home insulation manufacturer can use the colour pink other than Pink Batts, and Sunlight dishwashing liquid has rights over the sound of a 'squeak'. Arguably it is just a matter of time before 'purple' becomes a Cadbury trade mark."
Obviously the prediction has come true.

Another snippet from AJ Park's Brandscape talks about past efforts to trademark the colour Green for motor oils, apparently BP have managed to trademark it in some jurisdictions, and prevented others trademarking it in others; Nestles succeeded getting green for Milo, but V failed.

The future

How many identifiable colours are there? OK, paint colour cards & the Pantone system list thousands, my computer claims to be able to make millions, but twiddling the lowest few bits on colour codes make little or no difference to the colour perception, and there's more variation between different monitors than these low order changes make, so let's say there's 500 truly different colours. If every manufacturer can trademark only one of those colours, we'd be limited to 500 brands in each category. With WTO trademarks, that would be 500 products worldwide.

Problem is manufacturers don't play fair. Once they have peach, they'd put out a slight variation of their brand in nectarine, then gala, etc. I'm sure a certain software vendor who are well known for their ubiquitous 'Blue screen of Death' will be rushing to trademark the colour blue, and it won't just be the royal blue they use there, it will every variation they can think of. Soon new entrants won't be able to get into the market because every colour they try to make their products is already someone else's trademark.

I despair of the future in this increasingly corporatised world.

aside's spell checker doesn't recognise 'Cadbury', its only suggested correction is 'Cadaver'.

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