Choc shock as Cadbury claims ownership of colour purple

Choc shock as Cadbury claims ownership of colour purple

Purple is a curious colour.

For thousands of years, people have been fascinated by it. In the ancient world, purple dye was so rare and expensive that it was often associated with emperors, royalty and the very wealthy. Producing it could require enormous effort, which meant that wearing purple was less a fashion choice and more a public declaration of status.

Fast-forward a few thousand years and not much has changed.

Purple still carries powerful associations. Marketers often link it with luxury, indulgence, creativity, imagination and quality. Psychologists suggest it can evoke feelings of sophistication and exclusivity. Retailers know that it stands out from the sea of reds, blues and greens that dominate supermarket shelves. In a crowded marketplace, purple can be difficult to ignore.

Perhaps that is one reason why so many well-known brands have embraced it. Cadbury is the obvious example in Australia, but it is far from alone. Milka built an international identity around its distinctive lilac packaging and purple cow. Beauty, cosmetic and technology companies have also used purple to communicate innovation, premium quality and individuality.

Which raises an interesting question.

If a colour can become so strongly associated with a business, can that business actually own it?

The answer is both yes and no.

Trade mark law has long recognised that branding extends beyond names and logos. Consumers often identify products through colours, shapes, packaging, sounds and other visual cues before they ever read the brand name. A triangular chocolate bar may bring Toblerone to mind. A distinctive bottle shape may evoke Coca-Cola. A particular shade of purple may make consumers think immediately of Cadbury.

That is why Cadbury’s efforts to protect its famous purple packaging became one of the most closely watched trade mark stories in modern intellectual property law.

Over many decades, Cadbury invested heavily in promoting a particular shade of purple across its chocolate products. Through advertising, sponsorships, packaging and marketing campaigns, the company built a strong association between that colour and its brand. The objective was simple: when consumers saw that shade of purple, Cadbury wanted them to think of Cadbury.

However, obtaining trade mark protection for a colour is far from straightforward.

Unlike an invented word, a colour is something that other businesses may also wish to use. Trade mark law therefore requires a careful balance between protecting branding and preserving fair competition. Courts and trade mark offices do not simply ask whether a company has used a colour. They ask whether consumers genuinely see that colour as identifying the source of the goods or services.

That is where evidence becomes critical.

Evidence

Businesses seeking to register colours, packaging, shapes or other non-traditional trademarks often need to provide substantial evidence showing that consumers recognise the feature as a badge of origin. This can include advertising expenditure, sales figures, market share information, historical use, media coverage, consumer surveys and increasingly, social media engagement and online recognition.

The Cadbury purple disputes demonstrated just how high the bar can be. They also highlighted an important lesson for all businesses, regardless of size or industry. The issue is not really about chocolate or the colour purple. It is about whether a particular aspect of branding has become so distinctive that consumers immediately associate it with a single business.

For some businesses, that feature might be a colour. For others, it might be a package design, a product shape, a slogan or even a sound.

The real value lies not in the feature itself, but in what it communicates to consumers.

When a customer sees a colour and instantly knows who made the product, the colour has stopped being merely a colour. It has become a brand.

Cadbury’s purple trade mark story is often described as an overnight success that took decades to achieve.

The company spent many years using its distinctive shade of purple consistently across its chocolate products, investing heavily in advertising, sponsorships, packaging and brand building. By the time Cadbury sought formal trade mark protection, generations of consumers had already come to associate that particular shade of purple with Cadbury chocolate. However, even for a household name, proving that a colour functions as a trade mark rather than simply decoration was no easy task.

One reason colour trade marks are so difficult to obtain is that trade mark law tries to balance brand protection against fair competition. If businesses could easily monopolise colours, competitors might be unfairly prevented from using colours that are common or useful within their industries.

As a result, IP Australia and the courts generally require strong evidence showing that consumers see the colour as identifying a particular business and not merely as part of the product packaging.

How did Cadbury do it?

Cadbury’s registrations have never given it ownership of the colour purple in every context.

Rather, protection has historically been limited to particular shades of purple, particular products and particular uses. In Australia, Cadbury has obtained registrations relating to specific Pantone shades used in connection with certain chocolate products. The scope of protection is therefore much narrower than many people realise. Cadbury does not own the colour purple generally, nor can it prevent every business from using purple packaging.

This highlights another important lesson about non-traditional trade marks. Precision matters.

The exact shade, the goods covered by the registration and the manner in which the colour is used can all be critical. A colour mark that is carefully defined and limited to particular goods may have a greater chance of success than an attempt to claim broad rights over an entire colour category. In trade mark law, we tend to find that narrower claims are often easier to defend than broad ones.

The Cadbury experience also demonstrates why evidence is often the deciding factor.

There are however limits to the scope of protection….

Why does this matter?

Because the fundamental purpose of a trade mark is to act as a badge of origin. In other words, a trade mark helps consumers identify where goods or services come from. It also serves as a badge of quality, allowing consumers to make purchasing decisions based on their past experiences with a particular brand.

For example, when a consumer sees a familiar logo, package design or colour, they may assume that the product comes from a business they know and trust. They may also expect a certain level of quality, consistency and reputation. Trade mark law seeks to protect that connection between a business and its customers.

This is why evidence is often so important. The business must demonstrate that consumers do not merely see the colour, shape or packaging as decorative or functional. Rather, they see it as indicating the source of the product. Put another way, when consumers see the feature, they recognise the brand behind it.

When that happens, the colour, shape, packaging or other feature has effectively become part of the brand itself. It is no longer just a design choice. It has become a valuable commercial asset that may, in the right circumstances, qualify for trade mark protection.

How Sharon Givoni Consulting Can Assist

At Sharon Givoni Consulting, we assist businesses with trade mark strategy, evidence gathering, trade mark applications, objections, oppositions and broader brand protection programs. Where colours, packaging, shapes and other non-traditional trade marks are involved, the preparation and presentation of evidence can be just as important as the legal arguments themselves.

We work with clients to identify the strongest evidence available, develop practical protection strategies and maximise the prospects of securing valuable intellectual property rights before competitors get too close for comfort.

Trade Mark Myths Every Business Owner Should Know

1. Many people assume that a trade mark is simply a logo or business name. In reality, trade mark law can protect a wide range of brand assets, including names, logos, slogans, colours, packaging, shapes and, in some circumstances, even sounds.
2. One of the most common misconceptions is that registering a company name or business name automatically gives ownership of a brand. It does not. A registered trade mark generally provides much stronger protection and can help prevent competitors from using confusingly similar branding.
3. Another common mistake is waiting too long. Many businesses invest heavily in websites, packaging, social media, advertising and marketing before checking whether their proposed brand is actually available.

Trade Marks 101: The Questions Business Owners Ask Most

Can I trade mark a business name? Yes.

Can I trade mark a logo? Yes.

Can I trade mark a colour or packaging? Sometimes.

How long does a trade mark last? Potentially forever if renewed.

Do I need a trade mark if I have a business name? Usually yes.

Five fun facts about purple

1. Purple was once so rare and expensive that it was associated with royalty and wealth.
2. Many brands use purple because it is often linked with luxury, indulgence and premium quality—making it a natural fit for products such as chocolate and cosmetics.
3. Purple is less common than colours such as red and blue, which can help products stand out on crowded shelves.
4. Brands such as Cadbury and Milka have spent decades building recognition around distinctive shades of purple.
5. Consumers can often recognise a brand from its colour alone.

---

Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.