New ruling in Cadbury’s battle for the colour purple

By Sarah Hills

- Last updated on GMT

Related tags Darrell lea Trademark Cadbury

Cadbury has lost its latest attempt to defend the use of its distinctive colour purple as a court has dismissed the first stage of its appeal.

Cadbury is locked in an ongoing dispute with rival Australian chocolate maker Darrell Lea because it uses purple as well.

It launched an appeal following a ruling in April by the Federal Court in Australia that Darrell Lea had not 'passed off' its products as those of Cadbury's, or breached the Trade Practices Act by selling chocolates in purple packaging.

But now the Federal Court has thrown out the confectionery giant’s claim that a judge who had initially ruled against Cadbury had displayed "apprehended bias"​.

Cadbury said in a statement: “The litigation concerns Darrell Lea's use of purple on certain chocolate products, including a Christmas range from 2000 to 2004.

“Cadbury alleges that this conduct was misleading or deceptive, or likely to mislead or deceive consumers.”

It explained that the appeal is being heard in two parts but yesterday the Full Court of the Federal Court determined the first part of the appeal in favour of Darrell Lea.

The second part of the appeal is scheduled for 2 March 2009.

It added: “Cadbury is committed to protecting its intellectual property rights and will pursue the appeal, seeking a new trial.

“Cadbury has also sought trade mark registration for Cadbury purple.

“The Trade Marks Office has accepted the application, but Darrell Lea has appealed the decision.

“That matter is presently before the Federal Court.”

The claim of "apprehended bias"​, one of 17 grounds of appeal, was made on the grounds that the judge should have declined to continue hearing the case.

This is because "a fair minded observer might reasonably apprehend that his honour might not bring an impartial and unbiased mind to the question raised in the proceeding, in the light of his Honour's earlier dismissal"​, according to a report in The Sydney Morning Herald.

But the SMH said that in the latest judgement, Justice Arthur Emmett stated that "the apprehended bias grounds should fail"​ because he did not consider that a lay observer might “reasonably apprehend that the primary judge might not bring an impartial and unbiased mind to the resolution of the questions before him”​.

Brand value

Today a brand can be a major financial asset for a company as brand value - the power of the brand in the mind of the consumer - can bring much-needed leverage in the marketplace, as well as propping up shareholder value.

When new rules emerged in the 1990s allowing colours to be registered as a trademark, the fight for brand recognition stepped up a gear, which was encapsulated by the Cadbury case.

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