Perhaps a glass less than half full? Perhaps empty?

The decision in the passing off/s 52 case brought by Cadbury against Darrell Lea, for DL’s use of the colour purple, has ended with (as a friend put it) Cadburys’ in something of a screaming heap. Cadbury was claiming that DL’s use of purple was misleading to consumers, or involved DL ‘passing off’ their goods as having some connection with Cadbury. It’s part of Cadbury’s general campaign to claim rights in the use of purple in selling chocolate: they also have trade mark applications on foot.

This battle in the general war has been lost. Nope, says Heerey J. No passing off. And some rather interesting comments about Cadbury’s use of the colour with potential salience in Cadbury’s trade mark application.

UPDATE: according to one of my commentators on Weatherall’s Law, the decision in the Trade Mark Office, where Cadbury’s application for a colour mark has been opposed, was handed down last Friday (hmmm, the day after the Judge’s decision was handed down…). I don’t, however, know the result and the decision isn’t yet online… If anyone does know, you can comment anonymously….

On the passing off issue, Justice Heerey held that:

‘Cadbury and Darrell Lea are competitors in the retail chocolate market, yet they each have distinctive product lines which are sold from different sorts of premises under distinctive trade names. They have distinct identities in the market place. Cadbury does not own the colour purple and does not have an exclusive reputation in purple in connection with chocolate. Darrell Lea is entitled to use purple, or any other colour, as long as it does not convey to the reasonable consumer the idea that it or its products have some connection with Cadbury. I am not satisfied that this has occurred, or is likely to occur’ [para 121]

Justice Heerey’s comments about how Cadbury uses colour might be of interest in Cadbury’s current application for a trade mark in the colour. That application, as I understand it (and I couldn’t check – IP Australia’s website is mucking up right now) is still in opposition. According to Justice Heerey:

  1. There is wide awareness amongst Australian consumers of the use by Cadbury of a dark purple colour (i) in connection with the marketing, packaging and presentation of certain chocolate products particularly Cadbury Dairy Milk and other block milk chocolate products, and (ii) as a corporate colour;
  2. Cadbury does not have an exclusive reputation in the use of this dark purple colour in connection with chocolate. Other traders have, with Cadbury’s knowledge, for many years used a similar shade of purple. Cadbury has not consistently enforced its alleged exclusive reputation. In relation to its chief competitor Nestlé, Cadbury has, for its own commercial reasons, permitted a use of purple in relation to popular chocolate products;
  3. Cadbury’s use of purple in marketing advertising and promotion is, and is seen by consumers to be, inextricably bound up with the well known name Cadbury in its distinctive script. Cadbury never uses the colour purple in isolation as an indicium of trade.

Despite the various claims about a trade mark in the colour which you will find on Cadbury’s website – looks like Justice Heerey does not consider that the colour is distinctive of Cadburys goods.

Ouch (hat tip: Starkoff (who kindly emailed me the news).