12 April 2008

Colour wars 2: Darrell Lea defeats Cadbury

In the latest round in the international colour wars, pint sized chocolatier Darrell Lea has defeated international retailer and bully boy Cadbury Schweppes for control of the colour purple in Australia.

In DIFFUSIONblog 25/5/07 we reported that Cadbury had won an appeal in which it claimed that since 1995 it had achieved a substantial, exclusive and valuable reputation and goodwill throughout Australia through the Pantone 2685C colour purple.

It alleged that since 2001, Darrell Lea had consistently used a colour bearing a "striking and obvious" likeness to Cadbury's purple in its signage, badging, wrapping, store fit-out and point of sale facilities.

The Australian Federal Court has now dismissed the latest application by Cadbury Schweppes that the use of purple by Darrell Lea amounted to misleading and deceptive conduct.

Justice Peter Heerey said he was not persuaded that Darrell Lea in using purple had passed off its business or products as those of Cadbury or had contravened Australia's Trade Practices Act.

"I am not satisfied that such usage has resulted, or would result, in . . . purchasers of chocolate being misled or deceived," Justice Heerey said.

Cadbury had claimed customers the use of the colour purple affected customers ability to discern the difference between the two company's products.

But Darrell Lea counterclaimed Cadbury's knowledge was limited to inspection of goods on display and physical surroundings. The claim was correct as the original evidence presented in an audit of colour use made no attempt to actually observe brand experience.

"Cadbury Schweppes has deliberately established a connection between our shade of purple and Cadbury chocolate, and many consumers associate Cadbury purple with Cadbury chocolate,'' Cadbury managing director of Mark Callaghan said in a statement.

"We remain totally committed to protecting our brand identity and Cadbury will appeal this decision.''

As we noted this the second appeal Cadbury has lost. In the original April 2006 hearing, a Federal Court judge dismissed Cadbury's claim. In the disputed hearing the court ruled Cadbury did not “own” the colour purple and that Darrell Lea's use was not likely to convey to a” reasonable consumer” that it was associated with its rival.

The field of brand identity can be somewhat murky and "locking up" what are essentially public colours without a similar attention to the impact of the rest of the identity system can be fraught with danger, as Cadbury continues to find.