Cadbury again fails in bid to bar confectioner from using purple

Posted by Daniel Palmer on 6th February 2009

Darrell Lea has taken another victory over Cadbury in the courts, with the Federal Court yesterday dismissing the first grounds of Cadbury’s appeal to the exclusive use of the colour purple.

Cadbury first began pursuing a legal battle in February 2003 on the grounds that the use of purple by Darrell Lea amounted to misleading and deceptive conduct under the Trade Practices Act. Cadbury has alleged that Australian confectioner Darrell Lea’s use of purple in stores, on uniforms and products would cause confusion for consumers.

Since beginning the legal battle Cadbury has taken their case to the courts on several occasions, with a full bench yesterday dismissing the first grounds of appeal over a judge’s alleged “apprehended bias”, which was lodged as one of 17 grounds of appeal. Cadbury’s other grounds for appeal will be heard on the first three working days of March.

In the latest court battle, Cadbury appealed that the primary judge should have declined to continue hearing the case because “a fair minded observer might reasonably apprehend that his honour might not bring an impartial and unbiased mind to the question raised in the proceeding, in the light of his Honour’s earlier dismissal.”

But Justice Arthur Emmett disagreed with Cadbury’s contention.

The use of colour as a trade mark has been made easier since 1995, but remains a contentious issue. In order to take exclusive ownership of a colour in a certain category, a company must show that they have used the colour as a trade mark and the public now readily identifies that colour with their goods or services.

Cadbury first applied for use of purple as a trade mark in 1998, with Darrell Lea opposing the claim. Last year a final decision by the Trade Marks Office was put on hold pending the outcome of Cadbury’s current battle with Darrell Lea in the courts. The Trade Marks Office has previously indicated that they will allow Cadbury to register purple as a trade mark but only for block chocolate and boxed chocolate.