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.

BP tries a new shade of green.

In yet another case of corporates looking to control selected colour shades, global energy group BP has applied to the Australian High Court to secure the colour green.

Like our previous blog on Cadbury Cadbury sees red, not purple,28 April 2006 the move is the latest in the company's long running (and expensive) campaign to register the Pantone colour 348C as a trademark.

BP's new application comes in the wake of a Federal Court defeat in 2006, when the company's application to register the colour failed, overturning a previous trademark ruling that allowed the company to trademark the colour for use on its service stations and facilities. Interestingly the action was brought by Woolworths, who also use the colour greeen in their branding.

According to IP Australia, a company can own a colour if it can convince the Trade Mark Office that the colour is a distinctive aspect of its product. So while BP may call 348C BP green, having selected the shade in 1989 as the predominant colour for its service stations, the cull Federal Court in Australia wasn't convinced. It was most recently included in the revamped corporate identity.

Here at DIFFUSION most of us know that brand strategy and corporate identities in Australia built around a single colour are difficult to register. The case being that BP would have had to use the colour green alone within it's corporate identity. While BP's brand values might be founded on the idea of being green, it's corporate identity is awash with a combination of green and yellow, and thus the court saw green as only one part of the total brand identity. Further, the Court was not prepared to divide BP’s trademark into various applications to allow registration for the single colour. They ruled that the colour green by itself failed to acquire a secondary meaning and by that had not established consumer's were capable of distinguishing and recognising BP’s activities and brand from those of its competitors through the use of the colour.

Here at DIFFUSION, we wonder if in fact Pantone actually have ownership of 348C not BP. We may not be IP lawyers, but this statement from Pantone seems to contradict some of BP's claims:

...published materials of Pantone, are protected by copyright laws and include, for example, graphic presentations, color references, PANTONE Colors, PANTONE Names, numbers, formulas and software.

Pantone may not lay claim to the actual shade but they do to the registration and naming of it.

No date has been set for a hearing in the High Court.