<p>UAE Federal Law No. 37 of 1992 Concerning Trademarks provides in Article 2 that:<br /><br /><em>&ldquo;A  trademark is anything which takes a distinctive form whether names,  words, signatures, letters, figures, drawings, symbols, titles, tax  stamps,</em>&nbsp;<em>seals, pictures, inscriptions, advertisements or packs or any other mark or a combination thereof&hellip;.&rdquo;</em><br /><br />It  will be noted that the definition of a trademark requires a mark to  &ldquo;take a distinctive form&rdquo; and single colours as such cannot be  considered to be inherently distinctive. Despite this requirement of  distinctiveness and the absence in the definition of specifically  dealing with single colours (or even a combination of colours), the  definition of a trademark has proven to be sufficiently wide to allow  for the interpretation that a single colour can in fact function as a  trademark in the UAE.&nbsp; This was confirmed by the registration in the UAE  back in April 2007 of a single colour trademark for a shade of orange  in respect of a particular rice product.&nbsp;<br /><br />As single colour  trademarks are considered less conventional and are not commonly applied  for or as a rule accepted for registration, ongoing developments in  respect of single colour trademarks in jurisdictions outside of the UAE  remains of interest to trademark practitioners and owners in the UAE as  it provides some guidance on the kind of considerations that may be  relevant in applying for and objecting to single colour trademark  applications here in the UAE.<br /><br />In this article the recent judgment  in the UK case involving Cadbury&rsquo;s application for the registration of a  shade of purple is reviewed as the logic applied by the court (rather  than the legal principles) could be of assistance in local matters.<br /><br /><strong>Background of the UK case<br /><br /></strong>In  2004, Cadbury applied to register the Cadbury shade of purple  (identified on the Pantone colour chart as Pantone 2685C) as a trademark  in the UK in respect of the following goods:<br /><br />"chocolate in bar  form, chocolate confectionery, chocolate assortments, cocoa-based  beverages, preparations for cocoa-based beverages, chocolate based  beverages, preparations for chocolate based beverages, chocolate  cakes".&nbsp;<br /><br />The application was rejected by the UK Trademark  Registry on the ground that it was "devoid of distinctive character" &ndash;  i.e. that is the mark is incapable of serving the function of a  trademark and identifying the origin of the goods to which it was  applied.<br /><br />Cadbury filed evidence that the colour purple mark had  &ldquo;acquired distinctiveness through use&rdquo;, showing that the mark had been  used so extensively that consumers had come to recognise it as  identifying Cadbury&rsquo;s goods alone. In particular it was submitted that  Cadbury had been using its colour purple trademark since 1914.<br /><br />The  UK Trademark Registry accepted the evidence and the application for  registration of the mark for the majority of goods applied for. The  examiner found that there was no inherent distinctive character in the  colour purple mark, but there was a significant body of evidence  suggesting that the mark had in fact acquired distinctiveness.<br /><br />Although  the application for the colour purple mark was accepted by the UK  Trademark Registry, it was opposed by another confectionery producer as  it also used a shade of purple in respect of one of its own brand of  chocolate products.&nbsp;<br /><br /><strong>The objection to the colour purple trademark</strong><br /><br />On  appeal to the High Court of the UK, the UK Trademark Registry&rsquo;s  findings on the acquired distinctiveness of the colour purple trademark  were not placed in dispute. Instead the appeal was based on the  contention that the colour purple trademark did not meet the definition  of a sign as the mark had no distinctive character (this kind of  argument may also be of particular relevance here in the UAE where the  Law does not deal with the concept of &ldquo;acquired distinctiveness&rdquo;).<br /><br />The  question of single colour trademarks has been the subject of several  European Court of Justice (ECJ) decisions. The ECJ case of Libertel  Groep BV v Benelux-Merkenbureau was the first case to expressly  acknowledge that a colour could be registered as a trademark provided  that the colour is described and accompanied with a Pantone reference.  Such a reference allows the mark to be identified clearly which is a  requirement of a sign capable of graphic representation and therefore  registration. In addition however, it is required also that a Court must  consider the context of the particular case in order to make a  determination on the registration of a single colour trademark.<br /><br />In  the appeal, the appellant cited a later ECJ case (following the  Libertel case) involving Dyson Limited and the Registrar of Trademarks  which held that the abstract concept of a transparent bin for a vacuum  cleaner was not capable of registration as a trademark. The appellant  argued that the logic applied in the Dyson case should be extended to  abstract colours so as to prevent an unfair competitive advantage being  obtained by possible registrants.<br /><br />In the appeal the Judge  considered the decisions of the ECJ and decided the case in favour of  Cadbury.&nbsp; The opposition to the application of the colour purple mark  although unsuccessful overall, did result in the trademark registration  being limited to the following goods: "chocolate in bar and tablet form;  chocolate for eating; drinking chocolate; preparations for making  drinking chocolate".&nbsp; The reason for this was that the evidence in this  case showed that other manufacturers also used a purple colour in  respect of cakes and chocolate assortments, while Cadbury itself used  colours other than its particular shade of purple in respect of its own  chocolate assortments.&nbsp;<br /><br /><strong>Important limitations<br /><br /></strong>This  case shows that the UK courts will limit a monopoly granted in respect  of a particular colour in order to ensure that the monopoly only extend  to the genuine and proven interests of an applicant.&nbsp; The protection  granted to Cadbury is not for a shade of purple generally, but for the  very particular and objectively identifiable shade of purple it uses  (Pantone 2685C).&nbsp; Cadbury's trademark will accordingly only be infringed  if a shade of purple so similar to the colour identified as Pantone  2685C is used, as to be indistinguishable.<br /><br />Further, protection  for the Cadbury&rsquo;s purple trademark was rejected in respect of many of  the goods included in the original trademark application.&nbsp; This included  goods such as chocolate assortments and cakes, even though Cadbury  submitted evidence proving the use of its specific colour purple in  respect of such goods.&nbsp; The conclusion that can be reached in this  regard is that courts in the UK at least will take a very conservative  approach in granting exclusivity in respect of single colour trademarks  requiring use of the relevant colour mark over a significant period of  time, a very strong association between the relevant trademark owner and  the goods bearing the single colour mark, and the use of the single  colour in relation to particular products being close to exclusive.&nbsp;<br /><br /><strong>What does this case mean for trademark protection in the UAE?<br /><br /></strong>Although  the decision in the Cadbury matter took place in the UK under UK laws  and in consideration of ECJ judgments, there is a possibility that both  the trademarks registry in the UAE and the local courts would follow a  similarly conservative approach in granting a possible monopoly on the  use of a single colour as a trademark.&nbsp; Further, the logic applied in  this case in dealing with the question of distinctiveness and the kind  of evidence required to support a conclusion that a single colour can  function as a distinctive trademark, should be of assistance to the  trademarks registry, the UAE courts and accordingly interested  applicants (and opponents) in dealing with applications for single  colour trademarks in the UAE.<br /><br />In practice, it would accordingly  be advisable for parties seeking protection for single colour trademarks  in the UAE to (i) clearly define the relevant colour in a way that is  objectively determinable; (ii) to consistently use the relevant colour  in practice; (iii) to prevent the use of shades of the relevant colour  by others (to the extent this may be possible) in respect of the same  category of goods / services; and (iv) to keep good record of the  development of the particular shade of the colour (if developed  specifically), packaging, marketing and advertising materials as  evidence .<br /><br /><strong>Conclusion<br /><br /></strong>It is important to  bear in mind that Cadbury&rsquo;s use of its shade of purple started back in  1914 which was an important fact considered by the court in this matter.  As Cadbury had almost a century of use of its colour purple to rely on,  the ownership of single colour trademarks &ndash; also here in the UAE - is  likely to continue to be an exception rather than the rule.</p>