In the UK, Cadbury has exclusive rights to its trademark colour purple on confectionery packaging. Now it is seeking similar rights in New Zealand. Cadbury says it's protecting its heritage; smaller competitors lack the financial muscle to fight back. Clare Harman reports.

New Zealand ice cream maker Minoo Gelato received a letter last week threatening court action because its chocolate gelato product is packaged with a purple label. As far as UK chocolate major Cadbury is concerned, this violates its intellectual property rights. Others see it as evidence of the bully-boy tactics regularly employed by multinationals to squeeze out smaller competitors.

Cadbury has no legal trademark on the hue, but nevertheless "anybody who puts out a chocolate product [with purple packaging] is likely to get a letter from us," explained Jonathan Ellis, a lawyer for the soft drink and confectionery giant in New Zealand.

A threatening letter from a major company is enough to make most smaller firms back down and redesign their branding for fear of the costs involved in lengthy court proceedings. The husband and wife team that own Minoo Gelato, Lorna and James Mansouri, are a prime example, spending "major money" on their branding between 1993 and the launch of their products in the supermarkets last year, but unable to afford "a long legal wrangling over it."

Alan Bowie, intellectual property specialist, is adamant that Cadbury is behaving unfairly: "They are trying to clean up the market to ensure that they are the only ones with the colour purple."

"Part of the tactics of Cadbury is to bully these small players using the colour purple. Have Cadbury been the only ones using that colour for some time? The answer is no."

The use of colour as a trademark is a dubious issue that lacks standardisation. In the UK, Cadbury's home market, the colour purple was successfully registered as a trademark in May 1995. Patent 2020876A ensures the hue is preserved for the company's exclusive use, and is described thus: "The mark of the colour purple... applied to the whole visible surface, or being the predominant colour applied to the whole visible surface, of the packaging of the goods."

Kashif Amin of the Cadbury's UK design team told just.food.com of the importance of the colour: "It's a luxuriant, suggestive colour [...] and it gives you a sense of quality."

"We do encounter other companies wanting to use the colour of course, but what we basically tell them the reference for our particular shade of purple, try and steer clear of it," added Amin. "To be honest people do tend to be, on the whole, quite sensible about it; they realise that Cadbury is a major player in terms of confectionery and they make sure [they avoid it]."

Company officials argue that purple is so intrinsically linked with the Cadbury brand that those who use it are taking advantage of the giant's loyal consumer base. Amin believes that the trademark may be justified "because the purple of Cadbury has a lot of heritage [...] it's almost part of the identity, and people can relate to it readily."

This is the thinking behind the company's application for a trademark to the Intellectual Property Office of New Zealand, submitted four years ago and still awaiting an official decision. It is also the point, nevertheless, that the company's lawyers have argued and won against a number of sector rivals, including Australian company Snow's.

But what about the effect patenting a colour has on competition? "Do I think it's fair? I don't really know," says Amin. "But when you look at a Pantone reference guide, there is a myriad of different purples... and we have just picked one, one out of 50,000 official printing colours, so when you look at it like that it's probably not as bad."

To date, the trademark is not applied in other countries, partly for historical reasons but also because Cadbury is a multinational. Amin explains: "Because Cadbury is a global company it will not always translate as the same from a visual perspective. It is recognised as the colour for Cadbury in the UK. Maybe not so much in other European companies because obviously, purple can mean something completely different in France or Argentina or wherever." Perhaps this shows how inappropriate colour is as a corporate signifier; dependent on specific cultural associations, it may not translate with the same success across international markets.

So far in New Zealand meanwhile, BP petrol stations have the exclusive rights to green and only Telecom's telephone directories may be produced in yellow. As far as chocolate goes, however, Cadbury is still hopefully awaiting the official decision on whether manufacturers may trademark a colour, and whether it may claim exclusive rights to the colour purple.

Minoo Gelato and its supporters are hoping with equal fervour that the courts will reject the notion that a given colour may become the intellectual property of a single company or individual, worried that if Cadbury's application is granted there will exist a very narrow spectrum of competition in the confectionery market.

By Clare Harman, just-food.com editorial team

To read about a similar case in the Philippines, where Nestlé battled a local producer about his use of the word Gold for his coffee product, please click here.