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 EWCA Civ 1175 were brought together by the Court of Appeal because of the similarity in legal issues.
The Court of Appeal had to determine the contested trade mark application for Cadbury's purple colour and the validity of the registration for a Scrabble tile. Specifically, the court had to consider whether the lower courts had misapplied Directive (EC) 2008/95 (the Directive) and the Trade Marks Act 1994, s 1(1) which define a trade mark as:
Case law has helped to flesh out what these requirements mean in practice and established that colours per se are capable of registration (Heidelberger Bauchemie GmbH: C-49/02  All ER (D) 268 (Jun) and Libertel Groep BV v Benelux-Merkenbureau: C-104/01  IP & T 187)
A bit of history: in 2004 Cadbury applied to register a trade mark for the colour purple (pantone 2685C) that ‘applied to the whole visible surface, or being the predominant colour applied to the whole visible surface of the packaging of the goods’. Nestle objected that Cadbury’s application was too vague, particularly use of the word ‘predominant’ which was subjective and could in theory protect any colour combination as long as it included purple.
In the High Court (Societe des Produits Nestle SA v Cadbury UK Ltd  EWHC 2637 (Ch),  All ER (D) 06 (Oct)) Birss J rejected Nestle’s argument stating that the word predominant ‘does not introduce any more vagueness or uncertainly than is already present and ac
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