It is the perk of society that consumers have a voice which corporations are forced to listen to. It is for this reason that even the largest corporations expend a great deal of time, resources and costs in designing, promoting and presenting their brand. Where necessary corporations protect their brand with tenacity and nowhere are these battle lines more acutely drawn than on the shelves of our supermarkets. No doubt we all remember the social media campaign launched by staunch supports of Aldi’s Cuthbert the Caterpillar when M&S brought legal action against Aldi to prevent the sale of that cake given its apparent similarities with their own Colin the Caterpillar.
According to a news article which has recently come to my attention, the latest legal foray in these ongoing “confectionary wars” has arrived in the form of a letter from the owner of the “Milka” chocolate range to the London based company “The Primal Pantry”. Milka, it would seem, consider that that company is exploiting its trademark. All chocolate lovers will know that Milka chocolate is sold in lilac packaging. Their claim is that Primal Pantry are infringing upon their trademark by selling their product using packaging of a similar colour.
What is a Trademark?
A “trademark” can most simply and effectively be described as a “brand”. Many things can operate as a trademark including words, slogans and design, anything which is relevant to the general “get-up” of a product. This includes, in theory, the colour of the packaging used.
Simply put a product may become recognisable by its look and not just because of the name of the company on the packet.
It is however a requirement of any registered trademark that it must be sufficiently distinctive and so the question will inevitably be not just if the colour / packaging is sufficiently distinctive but if it is sufficiently described within the registered trademark itself. Many companies have tried to register the colour of their packaging as a trademark with good reason. If you think about some of the most famous brands on our supermarket shelves you will likely be able to identify them, if the corporate name were somehow to be removed, by the colour of their packaging. By way of an example (and in keeping with the sweet treat theme), many fizzy drinks sold in supermarkets are in clear plastic bottles. At a distance their contents often appear to be the same. So, if the corporate logos were removed, whether the label on the bottle is, say, blue or red is significant to determining the contents of the bottle. In fact, without mentioning the brands involved I suspect you know exactly which brands I am referring to. That is the power of packaging in conditioning a consumer’s brain and is precisely the interest Milka’s owner wishes to protect.
Unfortunately for Milka’s owners, they are not the first company to try and register their packaging colour as a trademark. In fact, they are not the only chocolate company to do so. Cadburys, for instance, have previously applied to register the colour purple as a trademark by reference to its appearance on both the whole visible surface of their product or its being the predominant colour applied to the whole visible surface of the packaging. It was the suggestion of what constitutes the “predominant colour” that proved the thorn in Cadbury’s side. It was determined when a competitor, Nestle, challenged the mark that that phraseology lacked the required clarity and precision and, as such, it was determined that Cadburys could not rely on the trademark.
I do not know the full extent of Milka’s trademark, but existing case law suggests registering the colour of packaging as a trademark is, in of itself, fraught with difficulties. It remains to be seen if Milka’s owners feel sufficiently confident to take the matter further. I do expect Primal Pantry to stand their ground on the basis of the article I have read.
So next time you find yourself in the aisles of your local supermarket just remember you find yourself in the epicentre of a legal battlefield which has been running for many years and will likely run for many more years to come.
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