For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

Two of our regular Kats are currently on blogging sabbaticals. They are David Brophy and Catherine Lee.

Monday, 14 April 2008

Chocs away!

The IPKat thanks his friend Jim Davies (Bell Dening) for this snippet from The Age concerning Cadbury Schweppes's battle -- now lost -- to control the colour purple as a trade mark for chocolate. More than five years ago, Cadbury objected to local competitor Darrell Lea using various shades of purple in its store signage, uniforms and product. Last Friday, however, Justice Peter Heerey ruled in the Federal Court that Darrell Lea's use did not amount to misleading and deceptive conduct, as Cadbury had alleged. According to the judge, chocolate eaters were discerning enough to tell their Cadbury's from their Darrell Lea. Said the judge:

"Consumers are never presented at the point of sale with a Cadbury product, in purple or not, without the Cadbury name prominently displayed. The ordinary reasonable consumer is to be credited with awareness of this when confronted with the allegedly misleading Darrell Lea product".
Cadbury Schweppes is to appeal, though:
"Cadbury Schweppes has deliberately established a connection between our shade of purple and Cadbury chocolate, and many consumers associate Cadbury purple with Cadbury chocolate. We remain totally committed to protecting our brand identity and Cadbury will appeal this decision".
This member of the IPKat team, who is largely colourblind but whose reading age is pretty good for a Kat, is musing about the notion of association. He associates football teams such as Arsenal, Manchester United and Liverpool with red, for example, and expects them to be wearing red when he sees them -- but he doesn't think of Arsenal, Manchester United or Liverpool when he sees the colour red. For a colour to work as a trade mark, he would expect the colour to trigger the association with the thing coloured. Merpel wonders, if confectionery companies were as committed to their loyal consumers as they were to their brands, would they perhaps think twice before making all those annoying changes in their popular products?

Full text of this case -- the eighth in the series between these two parties -- here (Tufty says, if you think chocolate is addictive, you should try litigation)
Darrell Lea here
Cadbury's Purple Reign here
Deep Purple here
Death by chocolate here
Cure for chocoholics here
How to remove chocolate stains here
Another Chocolate War here

10 comments:

Anonymous said...

In the context of football, red doesn't make you think of a particular football team because it's not distinctive, there are too many teams using it. But when you are in the context of chocolate, purple does (or at least used to, before Darrell Lea) make you think of Cadbury because it is distinctive for chocolate. Association is not in a vacuum, it's in the context of the goods.

Jeremy said...

Dear anonymous, the cow in the illustration was not there by accident. It's a respectable purple cow, against a purple background, and it's not a Cadbury cow either. How distinctive does that make the Cadbury purple?

Jack McVooty said...

Consumers may associate purple with Cadbury because no other chocolatier uses purple to decorate their package, but does that mean Cadbury has established trademark rights in the color? The association between Cadbury and purple has to be an ownership association, not merely an association arising out of singular use, as I see it.

Anonymous said...

Yikes! I can't believe I missed the chocolate question. I thought Milka was made by Cadbury!

Birgit said...

RE: "Anonymous said...
Yikes! I can't believe I missed the chocolate question. I thought Milka was made by Cadbury!"

When I first came to the UK I honestly thought that the "purple" Cadbury chocolate was the UK version of our beloved continental Milka chocolate. Just like all the Opel cars are called Vauxhall in the UK and Opel elsewhere in Europe. The colour purple did trigger this idea as it is so very distinctive for Milka(!) chocolate and has been since at least the 1980ies - that is how far I can think back regarding purple chocolate. Purple seems to be a "chocolate colour" and as such not all that distinctive for chocolate ... (a German view)

Arlo said...

I think the trouble here is that there are so many Cadbury products that are NOT purple. If all Cadbury products were exclusively purple, its case would surely have been stronger.

Anonymous said...

I agree about Milka purple being similar but I think that (in the UK at least) purple is widely recognised in the field of confectionary (and possibly beyond) as representing Cadbury. Example: I bought a purple dress at the weekend and upon trying it on my friend informed me I looked like a big bar of Dairy Milk. There must be something in that, either that or I need new friends...

Anonymous said...

Quality Street is pretty big in the UK, and they use a lot of purple. I don’t think there is any link between Cadbury and Quality Street.

Nicholas Weston said...

Good article on this by Professor Mark Davison onthe Australian Trade Marks Law Blog at http://www.australiantrademarkslawblog.com/admin/trackback/68273

inchirieri apartamente cluj said...

I don't know who was first: the chocolate or the drink. Anyway there's Milka, and she is wearing purple too. When you want to invest in your brand you need to trademark even the colors used in the logo… the dimensions of the letters and so on. I think that Cadbury chocolate should pay more attention to Milka because they are both on the same market.

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