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.