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

This article 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 use of the colour purple as a trade mark, and indeed Cadbury has yet to succeed in registering purple, owing to Darrell Lea’s continuing opposition. The litigation concerned unsuccessful actions pursuant to ss 52 and 53(c) and (d) of the Trade Practices Act 1974 (Cth) and an action in passing off in which Cadbury in substance sought to maintain a monopoly over 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.