Consumers do not always read labels, so the packaging of a product, particularly its colour, can be crucial in establishing brand loyalty. In a recent case, the High Court considered whether the purple shade shared by rival pharmaceutical products could potentially cause confusion among customers.
For 20 years, a pharmaceutical company had marketed a product treating asthma in predominantly purple packaging. The company launched a claim against trade competitors after a rival, generic product appeared on the market with purple packaging.
In ruling on the matter, the Court noted that the company had put a great deal of effort and resources into researching instances of healthcare professionals and patients confusing its product with the generic rival. However, despite their efforts, there remained no evidence that the colour purple had become distinctive of the company’s product to its consumers.
Additionally, the Court noted that the packaging of the company’s product features more than one shade of purple.
These shades are likely to be perceived and described by different people in different ways. It was not the company’s case that any particular shade of the colour was distinctive of their products in general.
There was no proper basis for alleging that the competitor had recklessly deceived patients by generating purple packaging. It was inherently unlikely that patients would make any assumptions about the characteristics of the generic rival, or the identity of its manufacturer, simply on the basis of its colour. As a result, the court dismissed all of the company’s claims.