On paper, trademarking a colour or sound might appear straightforward, provided that statutory and case law guidelines are adhered to. However, in practice, achieving such a trademark is often fraught with challenges—chiefly due to competition.
The Case of Cadbury’s Purple
One of the most well-known examples of a company striving to trademark a colour is Cadbury’s attempt to secure rights over its signature purple, Pantone 2865C, used on its packaging. Despite years of effort, Cadbury faced continuous opposition, primarily from its main industry rival, Nestlé. However, in 2022, the High Court finally granted Cadbury the trademark for its iconic purple, marking a significant victory for the brand.
What Does Trademark Law Require?
Trademark law outlines a broad range of items eligible for trademark protection, including words, numbers, images, colours, sounds, and even smells. However, the challenge lies in meeting additional legal requirements.
A trademark must be precise. Since trademarks serve to identify the origin or ownership of a product or brand, their scope must be narrow to avoid encroaching on the rights of others. Trademarks cannot encompass general or ambiguous elements that could be widely used by other businesses.
For colours, specificity is critical. A colour must be defined as a single shade from a recognised universal system like Pantone. Cadbury, for instance, trademarked a very specific shade of purple (Pantone 2865C) to meet this requirement. Similarly, sounds must be unique, distinct, and recognisable, avoiding common or functional tones.
However, the precision required for trademarks can be difficult to prove in certain contexts. For example, in the 2002 Sieckmann case, the claimant attempted to trademark a scent. The application was denied because the chemical formula could not be made accessible, and the scent lacked a clear, objective description. The ruling clarified that while scents can theoretically be trademarked, demonstrating their distinctiveness is nearly impossible in practice.
The Sieckmann case also introduced the Sieckmann criteria, which outline the standards for non-traditional trademarks: they must be “clear, precise, self-contained, easily accessible, intelligible, durable, and objective.” These principles provide a framework for assessing trademarks like Cadbury’s purple, which satisfies these criteria.
Challenges with Trademark Applications
Despite Cadbury’s compliance with trademark requirements, their bid to secure their colour trademark faced repeated delays due to objections from competitors. Trademark applications are open to any third party oppositions, and competitors like Nestlé capitalised on this process to challenge Cadbury’s claims.
In contrast, sound trademarks, such as the Hisamitsu Pharmaceutical sound mark, can avoid some of these challenges because they are represented visually, for example, through sheet music. However, this also creates limitations: under European Union Trademark Regulations, the mark must be represented in a way that authorities can use to determine its origin and scope of protection. If this is not possible, the application will be rejected.
Practical Challenges
The real difficulty in trademarking colours or sounds often arise not from the legal framework itself but from its application. While the rules are well-defined, challenges vary depending on the subject matter. For instance, representing a single colour objectively using a universal system like Pantone is relatively straightforward, but proving the distinctiveness of a scent is significantly harder. Similarly, the competitive nature of some industries makes it more challenging to secure trademarks due to persistent opposition.
Whilst, the law provides clear guidance on trademark requirements, the practicalities of meeting these standards—and navigating opposition—make it far more complex to trademark colours and sounds than it might seem at first glance.
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