Cadbury UK Ltd v Comptroller General of Patents, Designs and Trade Marks & Anr, CA (Floyd, Henderson, Baker LJJ), 05/12/18

An appeal was dismissed, upholding a decision refusing to delete part of the description of a registered trade mark. Cadbury had registered a mark for chocolate bars, the description stating: “The mark consists 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.” Cadbury became aware that the wording rendered the mark liable to revocation for failure to be graphically represented with sufficient certainty or precision. It applied to delete the words in italics from the description. Cadbury contended that, properly construed, the registration was a series of two marks, of which one could be deleted. The court held that the fact that Cadbury had not applied for the registration as a series was not determinative. However, the language of the description led the informed reader to conclude that the various alternatives were parts of a generalised and imprecise definition of a single mark, and not a series. Accordingly, the proposed alteration was prohibited by s.44 of the Trade Marks Act 1994.