A long-running legal battle is
set to continue after confectioner Cadbury-Schweppes lodged
an appeal against a Federal Court ruling that dismissed its claim to
ownership of the colour purple, or more specifically, a particular shade thereof. According to The SMH, “Cadbury said yesterday that it remained ‘committed to defending our intellectual property’.”

It
could be satire, but it’s real. This is how weird intellectual
“property” law has become, arguing about whether people can own colours.

Underneath the talk of “ownership”, there is a real (if slightly obscure) legal point
involved: whether the purple packaging of Cadbury’s chocolate is
sufficiently fixed in the public mind as distinctive to it that another
manufacturer’s (in this case Darrell Lea’s) use of the same colour
might mislead consumers. The Federal Court ruled that it was not. In
principle, however, there’s no reason why a colour couldn’t have that
effect, and if consumers are being defrauded (even unintentionally)
then of course it’s legitimate for the courts to step in. That’s what
the common law tort of “passing off” is all about.

Conceptualising
all this as intellectual “property” puts the focus in the wrong place.
The essence of passing off is the misrepresentation: if Darrell Lea is
making people think that their product is really Cadbury’s, then both
consumer and competitor are being wronged. If they’re just gaining a
marketing advantage by using the same colour (or other feature),
trading on the pleasant associations that Cadbury’s has but not
actually misleading anyone, then no harm has been done to the consumer.

But
if you think of the colour as “property”, then there’s no difference
between those two cases, and companies can stifle competition even when
no misrepresentation is involved. That’s the netherworld where
copyrights and patents have already gone. At least the colour purple,
so far, hasn’t joined them.

Peter Fray

Get your first 12 weeks of Crikey for $12.

Without subscribers, Crikey can’t do what it does. Fortunately, our support base is growing.

Every day, Crikey aims to bring new and challenging insights into politics, business, national affairs, media and society. We lift up the rocks that other news media largely ignore. Without your support, more of those rocks – and the secrets beneath them — will remain lodged in the dirt.

Join today and get your first 12 weeks of Crikey for just $12.

 

Peter Fray
Editor-in-chief of Crikey

JOIN NOW