Why Cadbury Doesn’t Own the Colour Purple (And Why Colour Trade Marks Are So Hard) - Ep 17

Episode Title: Why Cadbury Doesn’t Own the Colour Purple (And Why Colour Trade Marks Are So Hard) Episode Overview Can a business really “own” a colour? In this episode of Elise Explains IP, we unpack Cadbury’s long-running attempts to protect its iconic purple packaging — and why those efforts have had mixed success in Australia and internationally. Using real cases, including the dispute with Darrell Lea and Cadbury’s failed UK registration, this episode explains why colour trade marks are some of the hardest rights to secure. What We Cover Cadbury’s use of purple Cadbury has used its distinctive purple (Pantone 2685C) for over a century, investing heavily in building brand recognition through colour alone. The Australian dispute with Darrell Lea Cadbury challenged Darrell Lea’s use of purple packaging, arguing it caused consumer confusion and leveraged Cadbury’s reputation. The UK trade mark attempt Cadbury’s application to register the colour purple failed due to lack of precision in how the colour was defined. Why colour trade marks are difficult We explore the legal and commercial hurdles, including exclusivity, consumer perception, and evidentiary burden. Key Case References Australia Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70 Full Federal Court decision Confirmed that Cadbury did not have exclusive rights to the colour purple for chocolate packaging Emphasised that colour alone was insufficient to establish distinctiveness in this context United Kingdom / Europe Société des Produits Nestlé SA v Cadbury UK Ltd [2013] EWCA Civ 1174 Court of Appeal decision Rejected Cadbury’s colour trade mark application due to lack of clarity (“predominant colour” issue) Cadbury UK Ltd v Registrar of Trade Marks [2014] EWHC 16 (Ch) Further confirmation that the application lacked the precision required for registration Société des Produits Nestlé S.A. v Cadbury UK Limited [2022] EWHC 1671 (Ch). Meade J decided in Cadbury's favour on two counts, allowing the registration of two of its applications for colour. The third application was refused. Key Takeaways Colour can be a powerful branding tool — but it is rarely enough on its own Trade mark law is cautious about granting monopolies over colours Evidence of long-term use is necessary, but not always sufficient Precision in drafting trade mark applications is critical Strong brands rely on multiple identifiers, not just one visual element Why This Matters for Business Owners Many businesses assume that consistent use of colours, packaging, or design elements automatically creates legal ownership. The Cadbury example shows that: Recognition ≠ legal protection Brand strategy must be supported by legal strategy Early planning can avoid costly disputes later Further Resources If you’d like help protecting your brand or understanding what elements of your business can actually be registered as trade marks, you can learn more here: 👉 www.elisesteegstra.com About the Podcast Elise Explains IP is a podcast for business owners, founders, and advisors who want to understand how intellectual property actually works in practice — and how to protect what they’re building before problems arise.