Cadbury Schweppes loses bid to ‘protect brand identity’


Cadbury Schweppes is seeing red over the color purple.


The Australian branch of the confectionary and beverage giant on Friday lost a court bid to ban a local competitor from using purple in its packaging and marketing.


The ruling is the latest round in British-based Cadbury’s long-running bid to gain commercial control in Australia of the color that is wrapped around many of its products, from candy bars to cocoa tins.


Cadbury Schweppes Pty Ltd had claimed in Federal Court that purple was integral to its image and that its use by family-owned Darrell Lea Chocolate Shops Pty Ltd was misleading and deceptive conduct that could cause customers to mistakenly grab the wrong chocolate bar.


Judge Peter Heerey said he was not persuaded that Darrell Lea’s use of purple in window displays and packaging was an attempt to pass its products off as those of Cadbury. He said the company had not broken the Trade Practices Act.


“I am not satisfied that such usage has resulted, or would result, in ... purchasers of chocolate being misled or deceived,” Heerey said in his judgment, handed down in the southern city of Melbourne and posted online.


The company’s lawyer, Tom Watson, accused Cadbury of trying to intimidate Darrell Lea. He welcomed the ruling as a victory for smaller businesses that are under pressure from large international companies.


“This was a long and hard-fought case against an overseas competitor which used its vast financial resources and all legal options open to it to seek to win this case,” Watson said.


Cadbury said it would appeal the decision.


“Cadbury Schweppes has deliberately established a connection between our shade of purple and Cadbury chocolate, and many consumers associate Cadbury purple with Cadbury chocolate,” managing director Mark Callaghan said in a statement. “We remain totally committed to protecting our brand identity and Cadbury will appeal this decision.”


Cadbury has been knocked back before by Heerey, who found in 2006 that “Cadbury does not own the color purple and does not have an exclusive reputation in purple in connection with chocolate.”


That decision was successfully appealed on the ground that the judge did not take into account testimony from expert witnesses for Cadbury, and the case was sent back to Heerey to hear from the consultants.


Marketing and behavior scientist Brian Gibbs testified that consumers could suffer “information processing errors” that could harm Cadbury’s business if other companies’ products were wrapped in purple.


Heerey on Friday rejected that argument as “speculative and quite unrealistic,” saying Cadbury could just as easily benefit from such potential confusion.


Cadbury launched its bid for control of purple in 1998, when it tried to register purple packaging as a trademark. Darrell Lea challenged the application, and the dispute is still before the regulators. (AP)