In the long running saga that has been the Cadbury v Darrell
Lea litigation; the latest blow to Cadbury has been the second
decision of Justice Heerey, who first ruled against Cadbury
late 2006, to again reject their claim to the exclusive rights
to their preferred shade of deep purple in chocolate
In the latest round the judge was required after an appeal
to the Full Court to admit certain expert evidence (a small
truckload in fact), which he duly did, but found that he was in
a better position to form conclusions in the case than the
surprisingly badly briefed experts were.
As Justice Heerey put it, the case after all concerned:
"the behaviour to be expected of, and the judgments
likely to be made by, ordinary (even if it might thought,
somewhat credulous) members of the community intent on making a
relatively modest purchase in a conventional way"
and as such he found the expert evidence "of no real
In the upshot:
"The hypothetical reasonable chocolate consumer
could think along these lines: Purple makes me think of Cadbury
chocolate. But I know that other chocolate makers' products
such as Violet Crumble use purple. So Cadbury does not have a
monopoly in the use of purple for chocolate. Seeing chocolate
in a purple wrapper with Darrell Lea's name on it in a
Darrell Lea shop does not make me think it comes from
The case will presumably be appealed by Cadbury who seem to
hold the unwavering view that the spoils to be gained should
they ever succeed will far outweigh the huge and surely
wounding legal and evidence costs they have endured so far.
If it wasn't so serious and such a waste of court
resources, it would be funny, in the same way that the black
knight in Monty Python's search for the Holy Grail was
– you know, the one who insisted continuing to fight
King Arthur even though he had lost both arms and legs?
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