In Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) [2006] FCA 446 (27 April 2006), Cadbury sued Darrell Lea alleging its use of the colour purple misled, or is likely to mislead, consumers into thinking Darrell Lea’s products are those of Cadbury or that Darrell Lea itself or its products have some kind of association with Cadbury. Cadbury claimed it had a "substantial, exclusive and valuable reputation and good will" in a particular shade of the colour purple.

The action failed.

The trial judge concluded (at para 97): Cadbury does not have an exclusive reputation in the use of this dark purple colour in connection with chocolate. Other traders have, with Cadbury’s knowledge, for many years used a similar shade of purple. Cadbury has not consistently enforced its alleged exclusive reputation. In relation to its chief competitor Nestlé, Cadbury has, for its own commercial reasons, permitted a use of purple in relation to popular chocolate products….

121 The findings above lead to these conclusions. Cadbury and Darrell Lea are competitors in the retail chocolate market, yet they each have distinctive product lines which are sold from different sorts of premises under distinctive trade names. They have distinct identities in the market place. Cadbury does not own the colour purple and does not have an exclusive reputation in purple in connection with chocolate. Darrell Lea is entitled to use purple, or any other colour, as long as it does not convey to the reasonable consumer the idea that it or its products have some connection with Cadbury. I am not satisfied that this has occurred, or is likely to occur.

UPDATE 22 May 2007: Full Court decision