Colour in branding: Asserting a monopoly in a colour for marketing purposes - the Cadbury-Darrell Lea litigation

Abstract

This paper reviews the litigation between Cadbury and Darrell Lea concerning the use of the colour purple in marketing chocolate products in Australia. At the time of the conduct in question, Cadbury had not registered uses of the colour purple as trade marks, and indeed Cadbury has yet to succeed in registering purple, given Darrell Lea's continuing opposition. The litigation concerned unsuccessful actions in passing off and pursuant to ss52 and 53(c) and (d) of the Trade Practices Act, in which Cadbury in substance sought to maintain a monopoly over a shade of the colour purple in retailing chocolate. The general principles governing the use of and legal protection of colour in marketing are commented upon, as are the utility and limitations of expert evidence in this class of case.

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