Blake Dawson - Battle over the colour purple goes against Cadbury - Cadbury Schweppes Pty Limited v Darrell Lea Chocolate Shops Pty Limited (No 8) [2008] FCA 470

Arthur Artinian and Lisa Ritson of Blake Dawson report that Justice Heerey of the Federal Court of Australia has handed down his decision of Cadbury Schweppes Pty Limited v Darrell Lea Chocolate Shops Pty Limited (No 8) [2008] FCA 470 in the long-running dispute between Cadbury Schweppes Pty Ltdand Darrell Lea Chocolate Shops Pty Ltd in relation to the use of the colour purple for chocolate and confectionery. According to Arthur Artinian and Lisa Ritson, Justice Heerey dismissed Cadbury’s claims against Darrell Lea.

Arthur Artinian and Lisa Ritson note that Cadbury has claimed that use of a particular shade of purple in connection with Darrell Lea’s chocolate confectionery business during the Christmas trading period in 2000 – 2004 amounted to actionable passing off at common law, misleading and deceptive conduct, and false representations in contravention of sections 52, 53(c) and 53(d) of the Trade Practices Act 1974 (Cth) (TPA). Arthur Artinian and Lisa Ritson also note that Justice Heerey, who decided the case at first instance, was required to treat the trial as continuing and to reconsider expert evidence adduced by Cadbury which discussed the importance of colours in modern day marketing practices. Although Cadbury had sought a new trial on appeal, Arthur Artinian and Lisa Ritson observed that the Full Court of the Federal Court of Australia held that justice would be served by a further hearing before the primary judge at which Cadbury’s expert evidence would be considered.

According to Arthur Artinian and Lisa Ritson, the decision of Justice Heerey may mark the end of a five year legal battle between Cadbury and Darrell Lea, during which this matter has been heard by his Honour at first instance, by the Full Federal Court of Australia, and again by his Honour in the present decision. However, it has been widely reported in the Australian press that Cadbury intends to appeal the decision, so the battle is clearly not over yet. The decision of Justice Heerey confirms that it remains extremely difficult to enforce rights in relation to non-traditional brand elements such as colours where such elements are used, albeit to a lesser extent, by other traders in the relevant market.

Blake Dawson - Battle over the colour purple goes against Cadbury

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