Battle of the brands is back: Cadbury and Darrell at loggerheads again

After years of legal proceedings, Cadbury's attempt to sue Darrell Lea for using a similar shade of dark purple to its own was quashed in April 2006 after Justice Peter Heerey concluded that Cadbury had no exclusive claim to its colour. Now, the case has been reheard following a decision by the Federal Court, which ruled that Heerey was wrong to dismiss Cadbury's evidence.

In its defence, Cadbury told the court that consumers were being misled by Darrell Lea's use of a "deceptively similar" shade of purple to its own. Siding with Cadbury, Brian Gibbs, associate professor of the University of Melbourne told the court that purple was "an activator of Cadbury's brand equity."

"The complex amalgam of activated nodes in a consumer's associative network for a particular brand is what constitutes the brand's meaning of image for that consumer and is the basis for the brand's brand equity," he said to the court.

David Mulligan of Color Rite believes that it is possible for a company to own a colour, but the process required to do this can be tricky. "The question it begs is how close to the colour is close enough to infringe the trademark and there is, probably, no definition of this based on objective measurement," he said. "However, it is possible to define this in numerical terms using colour measurement."

"Colour is always deemed to be a very important factor in branding products. For example, Coke has red, Telstra has yellow and Optus has green - they are all very easily identifiable. Obviously Cadbury considers it very important."

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