Cadbury turns purple as it appeals lawsuit loss

Cadbury launched legal action in 2003 in a bid to sue confectioner Darrell Lea over the use of colours similar to the dark shade of purple used for it’s global marketing. It lost the case earlier this year after Darrell Lea successfully challenged the lawsuit, but Cadbury claimed this week it remains “committed to defending our intellectual property.”

Karina O'Meara, corporate affairs director for Cadbury Schweppes, claims it registered its shade of purple with the Trade Marks Office in 2003.

“Cadbury has invested significantly in marketing our products using Cadbury purple in Australia over many years and we won't compromise on defending our rights,” says O'Meara. “It should be fairly tough to be honest. The results of the court case so far would suggest that it is not possible to copyright a colour in such a fashion.”

David Mulligan, colour management expert and managing director of ColoRite, agrees Cadbury has its work cut out for it.

“If you want to copyright a specific name or design then you have to define it properly,” says Mulligan. “I haven’t seen any numeric values applied to the Cadbury shade of purple, so I can see holes in their argument.

“Purple is a very difficult colour to match and looks different across the ranges of available substrates. At this point nobody can precisely reproduce it across the whole range of available packaging options.”

Justice Peter Heerey concluded in April that the case against Darrell Lea would not proceed because Cadbury had no exclusive claim to its colour. Heerey also dismissed the claims that Darrell Lea had attempted to pass off its goods as Cadbury products, an act illegal under the Trade Practices Act.

“Cadbury and Darrell Lea are competitors in the retail chocolate market, yet they each have distinctive product lines which are sold from different sorts of premises under distinctive trade names,” says Heerey.

“They have distinct identities in the market place. Cadbury does not own the colour purple and does not have an exclusive reputation in purple in connection with chocolate,” he says.

“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. I am not satisfied that this has occurred, or is likely to occur.”