Case: Cadbury Schweppes Pty Ltd v The Pub Squash Co Ltd [1981] RPC 429 at 460-461
Outcome: cited
This is purely a question of fact. Thus in Cadbury Schweppes Pty Ltd v The Pub Squash Co Ltd [1981] RPC 429 at 460-461 Powell J, in a judgment upheld by the Privy Council, held that although the plaintiff's soft drink "Solo" in a lemon coloured can had achieved a level of recognition and acceptance, it did not follow that the proprietor of "Solo" thereby became entitled to a monopoly in yellow coloured cans or that the mere fact the defendant adopted a yellow can for its product dictated a finding of passing off. In other words, it may not be enough that a particular colour is associated in the mind of consumers with a particular product. In the present case, purple may prompt in the reasonable consumers' mind a remembrance that purple has been associated with Cadbury chocolate, but not necessarily the conclusion that the purple packaged product presented for sale to him or her therefore must be Cadbury's. 84 In the present case Cadbury's own evidence (see [18] above) speaks of the elements in the "brand architecture": the name Cadbury, the colour purple, the glass and a half device etc. The architectural metaphor is apt. The architecture of a building involves the whole, not just one component such as a roof or wall. Cadbury's marketing shows how the name Cadbury and the colour purple are inextricably intertwined, with each one reinforcing the other and creating a total impact more than the sum of the parts. This is particularly striking in the late 1990s commercials which had not only extensive use of purple but the repetitive mantra "Cadbury is chocolate is Cadbury is chocolate". In any case, since Cadbury is without doubt one of the most well, and favourably, known names in all consumer marketing, and dominates the field of chocolate in Australia, it would be irrational in the extreme for Cadbury not to make the maximum use of the name. 85 In cross-examination Mr Nowicki was pressed to think of an example where the colour purple alone would be used for Cadbury with no indicia of branding such as the Cadbury name and the glass and a half device. There was a noticeable pause, perhaps upwards of half a minute. Eventually Mr Nowicki gave as an example the television show "Dancing with the Stars" on Channel 7 which he said "integrated into that show is specific uses of the colour purple as brand indicia in areas that the production company would not enable us to use other elements of our branding." He was asked: "There's two indicia used, the show is brought to you by Cadbury and in the background is the is the purple colour?... No, within the show specifically, within the production itself there are components independently where we only use purple." Mr Nowicki had previously said that the "show itself is brought to you by Cadbury". No program of "Dancing with the Stars" was in evidence, but if Cadbury were paying substantial amounts to sponsor a high-rating television show it is inconceivable that the name Cadbury would not be transmitted aurally and visually to viewers, even if some elements of the show, such as sets and costumes, contained only purple. If all that viewers saw in a program about dancing was some use of purple, why should they think of chocolate at all, let alone Cadbury chocolate? I am not satisfied that "Dancing with the Stars" is a true example of the purple colour alone used without the name Cadbury. 86 Shortly after that passage of evidence there was a mid-morning break. Upon resumption, Mr Nowicki volunteered that he had thought of another example where purple alone was used. The example he gave was the 2002 Manchester Commonwealth Games where the Queen's baton was purple as part of the Cadbury marketing plan associated with the event. This would have been a transient use, in the most literal sense. 87 I conclude that, for all practical purposes, Cadbury's use of the colour purple in marketing, promotion, advertising, packaging, and point of sale is always associated with the famous name Cadbury. What Cadbury said in its final submissions as to marketing and sponsorship activities (triathlons, Sydney Olympics etc) is true generally of Cadbury in the marketplace: "Each of these activities involve the use of Cadbury purple in connection with 'Cadbury'."