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