Colour as a registered trademark: no more violet for Tony’s Chocolonely

It is common that when people hear the term “registered trademark” they think of words, logos and shapes. However, the range of distinctive signs that can be registered as trademark is extremely broad, and can even include sounds, smells, or COLOURS, as is the case in the conflict to which we will refer below between two chocolate producers.

“Tony’s Chocolonely” is a Dutch chocolate producer that became known for promoting fair trade and the prohibition of child labour in the harvesting of cocoa beans. However, in one of its recent advertising campaigns promoting fair wages in cocoa production and processing, Tony’s Chocolonely ran into some legal troubles.

The problem was that in this campaign the Amsterdam-based company used packaging and colours from other well-known chocolate trademarks, to which it added its own one. For example, it used the same lilac colour as Milka (from the competitor Mondelez), despite the latter being a registered trademark, both in Germany and in the rest of the European Union (European Union Trademark).

The reaction of the owner of the registered colour trademark did not take long to arrive and Tony’s Chocolonely was sued before the Landesgericht of Hamburg for trademark infringement.

Said German Court, in its ruling of last February 22 (Case No. 315 O 30/24), agreed with the plaintiff, confirming the infringement of trademarks by the defendant, prohibiting him from continuing to advertise and sell its own chocolate, using lilac-coloured packaging in the European Union, as requested by the plaintiff.

In their decision, the judges stressed that the use of the same colour as of the registered trademark for identical products by Tony’s Chocolonely would create a risk of confusion among consumers, leading to exploitation and dilution of the reputation of the registered colour trademark.