Food and drink industry legal Q&A

How could trade tariffs work after Brexit?​

World Trade Organization (WTO) rules state you have to treat everyone as if they were your most favoured nation. So, if I apply a duty of 6.5% on imports of a chemical from India, I am obliged to apply the same to everybody, apart from WTO members with which I have preferential agreements.

Adopting a 0% import duty schedule for all goods is shooting both your feet with two guns, because then you lose all negotiating leverage. Farmers wouldn’t be able to sustain international competition. I’m not sure manufacturers would be able to sustain competition either.

In a no-deal Brexit, the UK could copy existing EU import tariffs and apply the same to all [import] trading partners, including the EU. The latter would have to impose the tariffs to all its imports from the UK, as there would be no preferential trade agreement in place [currently there are no tariffs on UK exports to the EU].

Many imports into the UK, especially from the EU, would be more expensive, there would be goods shortages pending regulatory approvals, and customs clearances and exports from the UK to other countries would be subject to duty on a most favoured nation basis. Of course, the EU would also have to start paying duties on goods going into the UK, but to it the UK will be just one trading partner.

Vassilis Akritidis is partner and head of WTO and international trade issues at law firm DWF​

What are the implications of Mondelēz International losing its trade mark battle over the purple hue it uses for its Cadbury-branded products?​

Many companies in the food and beverage industry will not fully understand how non-conventional trade marks such as colours, shapes and smells can be protected by law. However, a large number would undoubtedly strive to obtain monopoly rights for such things in the hope of protecting customary characteristics, while also preventing competitors from doing so. But, whether this is legally and commercially viable is a complex question.

This was undoubtedly Cadbury’s aim when it protected its well-used colour purple as a trade mark in 1995. However, the Court of Appeal has rejected the company’s recent attempt to widen the scope of that protection.

It said an application seeking protection for the colour as the “predominant colour”​ on product packaging was imprecise and could include a whole range of different marks within one application.

In contrast, it was implied that an application requesting protection for the colour applied to the whole surface of product packaging might be acceptable. Arguably however, this would have limited commercial use to Cadbury as its packaging is never just purple. 

Businesses striving for such protection should not only consider whether protection is likely, but also question whether that protection would provide the commercial advantage they desire, having considered the associated cost of obtaining it.

The Court of Appeal decision makes it clear that aspirational ‘one fits all’ protection will not be granted. So, multiple narrower applications would probably be required for packaging that would undoubtedly be re-designed and reinvigorated on a regular basis. 

Laura West is managing associate with intellectual property firm Mathys & Squire​