Lara Cresser

Cadbury’s sweet victory

Lara Cresser

6 December 2012

Trade marks

Traditionally, the colour purple conjures up imagery of medieval royalty…or Whoopi Goldberg, but if you think of it in terms of sweet treats one’s mind would likely turn to Cadbury. At least, that’s what the confectionary giant says.

 

In 2008, Cadbury filed a trademark in the UK over the shade of purple used on its products, (Pantone 2865c or “Cadbury purple”) a colour that it claims to have used since 1914.

 

The dispute over the trademark application arose as Nestle, as a major competitor of Cadbury, uses a comparable shade of purple on its “Quality Street” products.

 

The ensuing litigation culminated in November last year when a UK judge granted Cadbury the right to trademark the shade of purple used by the company on its product wrappers. Nestle then appealed the decision arguing that the colour could not be granted trade mark protection.

 

The decision on the appeal, handed down in October this year saw Birss J in the UK High Court uphold the decision that Cadbury could in fact get trade mark protection for “Cadbury purple”.

 

It’s been long established in Australian trade mark law that protection is available for things other than words and logos. Trade mark protection also covers sounds, names, shapes and fortunately for Cadbury it also extends to protect colours in limited circumstances.

 

Under Australian law the applicant for a colour trade mark must be able to show that the public have come to identify the colour used as a trade mark with their particular goods or services. Cadbury applied to register the colour purple as a trade mark in Australia but, according to IP Australia they, “were unable to register the general colour purple but were successful in registering a specific shade of purple as a trade mark on the packaging for block chocolate and boxed chocolate.”

 

Cadbury’s Australian trade mark filing was also the subject of litigation by Darrell Lea – see Cadbury Schweppes Pty Limited v Darrell Lea Chocolate Shops Pty Limited [2009] FCAFC 8.