How NZ's own law helped Australia win the Manuka Honey trademark war

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The recent decision in “one of the most complex and long running” trademark cases in New Zealand was a loss for the country’s mānuka honey producers.

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The ConversationThe Conversation
URL: 
https://theconversation.com/how-nzs-own-law-helped-australia-win-the-manuka-honey-trademark-war-206496https://theconversation.com/how-nzs-own-law-helped-australia-win-the-manuka-honey-trademark-war-206496
Retrieved on: 
Sunday, June 4, 2023
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Tags: 
Honey, Gaps, Science, Allergy, Tribunal, Intellectual Property Office of New Zealand, Marketing, Intellectual property, Method, Infection, Alley, Trademark, Government, Certification, Plant, Common, Waitangi Tribunal, IPONZ, Mānuka honey, Knowledge, Bird, Hunting, Property management, Tea, Animal husbandry, Medical device, Crown, Leptospermum
Geotags: 
AUSTRALIA, NEW ZEALAND
Summary
Key Points: 
  • The recent decision in “one of the most complex and long running” trademark cases in New Zealand was a loss for the country’s mānuka honey producers.
  • But it also served to highlight just how ill-equipped our laws are for protecting Māori taonga (treasures) and mātauranga Māori (traditional knowledge).
  • Certification marks are a type of trademark where the owner independently certifies that their goods possess certain defined characteristics.

The question of distinctiveness

    • The mānuka case dates back to 2015, when New Zealand honey producers lodged an application for the Manuka Honey trademark.
    • The Australian Manuka Honey Association opposed the application, arguing the proposed trademark was merely descriptive and not distinctive.
    • Read more:
      Mānuka honey: who really owns the name and the knowledge

      The distinctiveness test involves assessing whether the “average consumer” would regard the certification mark as a normal way of designating characteristics of the goods in question.

Mānuka as taonga

    • Some scientists believe that Leptospermum scoparium likely originated in Australia and travelled to New Zealand before the last ice age, probably with the assistance of birds.
    • Mānuka, as both kupu and plant, is regarded as a taonga by Māori.
    • Much of the knowledge about the unique characteristics of mānuka is directly derived from mātauranga Māori.

Limitations of New Zealand IP law

    • The mānuka case reveals some of the gaps in the intellectual property system in Aotearoa, especially in relation to the protection of taonga plants and mātauranga Māori.
    • Assistant Commissioner of Trade Marks Natasha Alley said she “carefully considered” the taonga status of mānuka, in addition to tikanga Māori and Te Tiriti o Waitangi/Treaty of Waitangi in deciding the case.

Protection of taonga and mātauranga Māori

    • The need to provide legal protection for taonga and mātauranga Māori – including through the intellectual property system – has been long discussed in Aotearoa.
    • The 1991 Wai 262 claim asked the Waitangi Tribunal to redress Crown laws and policies that denied Māori control over taonga, in violation of Te Tiriti.
    • In 2011, the Waitangi Tribunal issued a report containing specific recommendations about how New Zealand intellectual property laws should be reformed to ensure that taonga and mātauranga are protected.
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