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Purple Haze - Is it misleading to use a rival's signature product colour? |
In a recent case, Cadbury argued that it had 'substantial, exclusive and valuable' goodwill in its chocolate confectionery business, which it promoted by a particular shade of purple, and that another chocolate business, Darrell Lea, should not be able to promote its business using the same colour. |
For many years Cadbury has used the name Cadbury in a cursive script, adopted from the signature of its founder. It has used purple wrapping for its flagship brand Dairy Milk products since 1920, except during World War II. |
Cadbury holds over 70 per cent by value of the Australian market for block chocolate. In 2002, Darrell Lea's share of the confectionary market was 2.5 per cent. |
A small number of Darrell Lea products had been sold in other outlets in 2001 to 2003, but since then Darrell Lea had sold only through company-operated stores, licensed stores and freestanding units in other shops such as newsagents and pharmacies. About 70 per cent of its products were sold through its own shops. It did not produce moulded chocolate blocks. |
Between 2002 and 2004 Darrell Lea used purple in a shade like that used by Cadbury in various products, and Cadbury took its rival to court, claiming it misled the public who would think that Darrell Lea or its products had some association with Cadbury. |
The court found the two companies distributed via quite different outlets and had different products. A customer seeing a chocolate in a Darrell Lea label was unlikely to think it a Cadbury chocolate just because it had a purple wrapping. The court thought this was an important test: colour was a part of marketing but it did not determine product recognition. |
Cadbury had surveyed consumers and found purple was a particularly valuable promotional colour for chocolate products, but the products in the survey were unbranded, and for this reason the court rejected that the survey showed any likelihood of brand confusion. |
