29 Apr
2006

















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     chocolate wars

Justice Heerey of the Federal Court has provided a decision in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4), the latest round of disputes between chocolate makers about use of the colour purple to identify our favourite treat.

Cadbury has sought to trademark shades of the colour purple to identify its chocolate products. Registration of colour trademarks - like smells and sounds - is possible under Australia and overseas trademark law. Owens Corning for example gained a trademark in the US for use of the colour pink - pink as in Pink Panther - in relation to pink fibreglass insulation batts. Veuve Clicquet has sought registration of the colour orange for its champagne.

In the Australian case, Heerey J commented that

Cadbury does not own the colour purple and does not have an exclusive reputation in purple in connection with chocolate in Australia. Darrell Lea is entitled to use purple, or any other colour, as long as it does not convey to the reasonable consumer the idea that it or its products have some connection with Cadbury.

Cadbury had sued competitor Darrell Lea, alleging misleading and deceptive conduct in contravention of sections 52, 53(c) and 53(d) of the Trade Practices Act, along with the common law tort of passing off. Both businesses - and competitors such as Nestlé - had used shades of purple on their packaging.

The court held that although there is wide awareness among Australian consumers of Cadbury's use of a dark purple as a corporate colour and for the marketing/packaging of chocolate products (particularly Cadbury Dairy Milk) the business does not have an exclusive reputation in use of that colour in connection with chocolate. Other traders had, with Cadbury's knowledge, used a similar shade of purple over for many years and Cadbury had not consistently enforced an alleged exclusive reputation. Cadbury also markets chocolate products that have little or no purple in their packaging.

Heerey J noted that Cadbury never uses the colour purple in isolation as an indicium of trade; its products always bear the Cadbury name in a distinctive script and its use of purple is seen by consumers as inextricably bound up with the Cadbury name in its distinctive script.

He noted that the names Cadbury and Darrell Lea are distinct in sound and appearance (especially with the scripts used by the two businesses) and are unlikely to be mistaken for each other. Darrell Lea did not adopt the colour purple with the intention of misleading consumers, ie inducing them to believe its products were Cadbury products or had some kind of association with Cadbury. Its products are not presented for sale in close proximity to those of Cadbury, eg were primarily sold from premises that its owns or occupies rather than in supermarkets where its products might be found side by side with those of Cadbury.



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