Purple Chocolate

There has been a growing number of colour trade mark registrations appearing in the Australian Register of Trade Marks, and the recent court decision upholding BP’s trade mark registration for green as the dominant colour for a petrol station has provided some further support for such rights.

The Cadbury v Darrell Lea decision is the first Australian decision to consider the enforceability of rights in a colour where those rights are not based upon a trade mark registration. As the court noted, such cases are always highly fact specific. In this case, there were disputes about the evidence resulting in some of Cadbury’s evidence not being admitted, and on the basis of the remaining evidence that was admitted, the court was not satisfied that Darrell Lea’s use of the colour purple would be likely to mislead consumers.