After the parties had settled, it was necessary for Justice Bennett to determine whether Whiskas purple should be registered as a trade mark. The issue was whether the Registrar of Trade Marks had initially accepted the trade mark application (prior to the objection) on the basis of false evidence. Her Honour also made observations regarding whether the mark was capable of distinguishing Whiskas cat food.
Her Honour found that the registration had not been initially accepted on the basis of false evidence. Evidence was given in a declaration that purple was not used by any other cat food manufacturer, contrary to research demonstrating that others within the food industry often colour their products purple or use purple on similar products. Although the declaration may have been false in a material particular, Justice Bennett was not satisfied that the first Hearing Officer accepted the application on the basis of those representations.
Justice Bennett also found that the mark was capable of distinguishing the cat food. Purple had been extensively used with Whiskas in promotions and on the products since 2000 and had been carefully chosen to create a brand identity for the product. The colour was the predominant colour used on the packaging and was used across a range of their products to create a strong shelf-blocking effect. This could be contrasted with other traders who had used shades of purple to distinguish varieties of a product range. Evidence also indicated that consumers did in fact identify Whiskas’ cat food because of the use of Whiskas purple.
The emphasis which Justice Bennett placed on Mars’ extensive use of Whiskas purple illustrates the importance of adducing significant evidence of use of the particular colour on products and through promotional channels in order to overcome an objection that the colour is incapable of distinguishing the goods.
Whiskas purple is one of over three-hundred colour trade mark registrations, as registering distinctive colours is becoming an increasingly popular option for companies seeking to protect key elements of their brand identity.