The company has filed an appeal against a judgment, handed down in April this year, that Australia confectioners, Darrell Lea
Chocolate Shops, had not acted improperly in using a dark purple colour
similar to the signature shade used on the packaging of Cadbury brands.
Cadbury claimed that the use of the colour had given consumers the
false impression that they were buying Cadbury chocolate or products
associated with Cadbury and contended that Darrell Lea had contravened
the Trade Practices Act by attempting to pass off its goods as Cadbury
products.
But the Federal Court of Australia decided that, since Cadbury
was a recognisable brand on the strength of many factors, including the
logo and the distinctive Cadbury typeface, they did not exclusively own
the dark purple colour and could not prevent other manufacturers using
it.
Justice Peter Heerey concluded: “Cadbury does not own the colour purple and does not have an exclusive reputation in purple in connection with chocolate.
”Darrell Lea is entitled to use purple, or any other
colour, as long as it does not convey to the reasonable customer the
idea that it or its products have some connection with Cadbury.”
Since 1998, Cadbury has struggled to register purple as a trade
mark in Australia in the face of opposition from Darrell Lea. In April
this year, a Trade Marks hearing debated the contested application and
concluded that the company had been using the colour as a trade mark
since 1994 and could therefore register it as such on their boxed and
block chocolate.
In addition to Cadbury's packaging, purple also features
heavily in the company's advertising, factories, catalogues, delivery
vehicles and on its website.
The confectioners have used purple packaging for their products
from the 1920s to the present day, with the exception of the second
world war years when the luxury paper needed was in short supply.
Cadbury has operated in Australia since the 1920s and are one
of the dominant companies in the country's confectionery market. In
1998 there were around 86,000 Australian retailers selling Cadbury
goods.
