April 2008
The colour purple: Cadbury Schweppes’ court action in Australia
Cadbury Schweppes plc (Cadbury) the well-known confectionery and beverage company, has failed in the latest round of its legal fight in Australia to prevent Darrell Lea (the Australian confectionery company) from using the colour purple to wrap its chocolates.
Cadbury argued that by wrapping its chocolates in purple, Darrell Lea was attempting to pass off its chocolates as Cadbury chocolates and was thereby deliberately deceiving customers. Such is the use that Cadbury have of the colour purple, Cadbury argued, that many customers have come to associate this colour exclusively with Cadbury’s chocolate. As a result they argued that Darrell Lea’s use of this colour takes unfair advantage of Cadbury’s goodwill.
Justice Peter Heery (the Australian judge) did not agree with this. He was not satisfied that use by Darrell Lea of the colour purple would result in customer’s being misled or deceived.
Cadbury’s have said that they will appeal this decision.
Briffa’s comment
It is, of course, possible to register a colour as a trade mark (in relation to a specific category of goods or services) so long as you can show that use of the colour can be used to distinguish one set of goods or services from another. Many companies in the UK, including Cadbury, have been successful in doing so: Cadbury has registered a shade of purple in relation to block chocolate, Barclays bank has also registered a ‘blueish’ colour in relation to their services, and Orange has registered an orange colour in relation to telecommunications.
The main reason Cadbury Schweppes plc has not been successful in registering purple in Australia is that several other Australian chocolate producers have also been using purple on their chocolate products and argue that their use of this colour preceded Cadbury’s use.
The situation in the UK is the same in that it will generally not be possible to register a trade mark if this mark conflicts with an earlier mark for the same goods and services (even if the existing mark is not registered). This is necessary in order to prevent confusion in the marketplace.