Cadbury wins partial retrial on ownership of purple

In Cadbury Schweppes Pty Ltd (ACN 004 551 473) v Darrell Lea Chocolate Shops Pty Ltd (ACN 000 498 386) [2007] FCAFC 70 (21 May 2007), Cadbury won an appeal against the Federal Court's original decision that Cadbury does not have an exclusive reputation in the use of this dark purple colour in connection with chocolate and that, therefore, by such use of purple, Darrell Lea engaged in conduct that is misleading and deceptive, in contravention of provisions of Part V of the Trade Practices Act 1974 (Cth). Cadbury also claimed that Darrell Lea’s conduct constitutes passing off of its chocolate confectionary business and products as a business or products of, or connected or associated with, Cadbury.

The principal question in the appeal was whether the primary judge erred in refusing, in the course of the trial, to admit certain evidence that Cadbury sought to adduce from Brian John Gibbs, Associate Professor of Marketing and Behavioural Science in the Melbourne Business School at the University of Melbourne and others relating to the making of consumer decisions for the purchase of chocolate.

On appeal the Full Court found that the evidence was wrongly rejected and the Court could not conclude that there was no miscarriage of justice."If the evidence of Dr Gibbs and Messrs Stavros and Riches were to be accepted at face value, it would certainly be open to a Court to find that Darrell Lea’s use of purple is likely to cause the consumer errors identified by Dr Gibbs. That could be sufficient to justify a conclusion that Darrell Lea had engaged in conduct that was likely to mislead or deceive."

The action was remitted to the primary judge for further hearing.