Lead Stories
Cadbury Limited, The Colour Purple registrable as a trade mark
9 May 2006
Since 1995, it has been easier for companies to register a single colour as a trade mark under the Trade Marks Act. The process of registering a colour is not an easy one as the person applying to register the colour must show both that they have used the colour as a trade mark and that the public have come to identify that colour with their particular goods or services.
The Courts have said that, as all goods have to be some colour, it is likely that most traders' use of colour on their goods is as ornamentation. A previous case when the Federal Court found that colour was a trade mark is the colour terracotta which is used on rural irrigation pipe fittings by Philmac Pty Ltd. A decision by the Federal Court that BP PLC has used the colour green as a trade mark on its service stations is under appeal by Woolworths Limited.
Cadbury Limited applied in 1998 to register several shades of the colour purple as a trade mark for chocolate. The application was opposed by Darrell Lea Chocolate Shops Pty Ltd. A delegate of the Registrar of Trade Marks, after reviewing argument put to him at a hearing and considerable evidence filed by both parties, found that Cadbury Limited had used a particular shade of purple as a trade mark since about 1994 and had established its ownership of this trade mark only in relation to block chocolate and boxed chocolates. The application, if amended to this single shade of purple and restricted to block chocolate and boxed chocolate, could be registered unless the decision should be appealed by either party to the Federal Court.
As the Registrar's delegate observed in his decision, although Darrell Lea has established its opposition, both parties might be regarded as having had a measure of success.