Opposition by Cadbury UK Limited to extension of protection under regulation 17A.33 of the

This matter concerned an opposition by Cadbury UK Limited to an application for an extension of protection under regulation 17A.33 of the *Madrid Protocol Implementation Regulations 1994* (Cth). The opposition was brought against an application by a foreign applicant seeking to extend protection in Australia for its trade mark. The decision was made by Timothy Brown, sitting as a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the applicant's trade mark, which consisted of a specific shade of purple, was capable of distinguishing the applicant's goods from the goods of other persons in Australia. Cadbury UK Limited argued that the colour purple, in relation to chocolate products, had become distinctive of its own goods through extensive use and promotion, and therefore the applicant's mark should not be granted an extension of protection.

The delegate considered the evidence of use and promotion by both parties. He applied the principles of trade mark law concerning distinctiveness, noting that a mark must be capable of distinguishing the applicant's goods or services from those of other traders. In this instance, the delegate found that the applicant had not sufficiently demonstrated that its use of the specific shade of purple had acquired distinctiveness in Australia for the relevant goods. Consequently, the delegate upheld the opposition.