An opposition brought by Nestlé against Cadbury's trade mark application for the colour purple used for product packaging has been rejected by the High Court. The court upheld the UKIPO's decision to grant the colour mark based on acquired distinctiveness since 1914, but accepted Nestlé's claim that the mark should be restricted to "milk chocolate", based on the evidence presented. The judgment applied the ECJ decision in Libertel that a single colour, not spatially defined, is capable of registration as a trade mark if it constitutes a sign capable of graphic representation and is capable of distinguishing the goods and services of one undertaking from another.
Nestlé argued that the description of the mark (which included the words "the colour purple ... applied to the whole visible surface, or being the predominant colour applied to the whole visible surface...") was indeterminate as it presented alternatives ("whole" vs. "predominant") and that the term "predominant" implied the mark could constitute a combination of colours, which would take it outside the scope of Libertel. The judge dismissed this argument on the basis that the evidence presented by Cadbury showed the mark applied for was not for a colour combination and that the term "predominant" in the context of Cadbury's description was no more vague or uncertain than was already accepted in trade mark registrations of this kind.