Consumers do not always read labels, so the packaging of a product, and its colour in particular, can be crucial in establishing brand loyalty. In a guideline case, the High Court considered whether the purple livery shared by rival pharmaceutical products was sufficient to sow confusion in customers' minds.
A pharmaceutical company had for 20 years marketed a product for the treatment of asthma in predominantly purple packaging. The company launched a passing off claim against trade competitors after a rival, generic product appeared on the market in packaging which was also purple.
In ruling on the matter, the Court noted that the company had put a great deal of effort and resources into searching for instances of healthcare professionals and patients confusing its product with the generic rival. That had, however, proved fruitless and there remained no evidence that the colour purple had become distinctive of the company's product in purchasers' minds.
The Court noted that the packaging of the company's product features more than one shade of purple and that these 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 choosing purple as the colour of its 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. All the company's claims were dismissed.