News Zone

Court ruling and MPI actions against NZ Honey trademark set a dangerous ‘nanny state’ precedent 24 Mar 2016

A recent High Court ruling barring New Zealand Honey International from using their brand names Manuka Doctor and Manuka Pharm on honey has serious implications for potentially thousands of New Zealand businesses and product names.

Intellectual property expert and lawyer, Theodore Doucas of Zone Law and Zone IP, an intellectual property law firm and consultancy in Auckland and Wellington, said today that the actions of the Ministry for Primary Industries (MPI) – which led to the court case – and the ruling itself, are shortsighted and could have far reaching implications on the registrability of trade marks in New Zealand.

Earlier MPI cancelled NZ Honey’s export assurances because it said the brand names Manuka Doctor and Manuka Pharm were making health claims. The High Court agreed with that decision.

“We must now look carefully at other brand names that could be deemed to be making health claims? Like the Elixir Café in New Plymouth, The Healthy Baker, Doctor Yogurt or McCain’s Healthy Choice Chips? The last I looked there were 65 trade marks for food on the New Zealand Trade Marks Register incorporating the word ‘healthy’ in their brand name. Would the courts now have us believe they are all making health claims?

“I would suggest that all of these businesses and brand names are now at risk of having their brand names challenged.”

He said MPI’s actions and the ruling go too far. “A brand name is just a name and most consumers understand the difference between a brand and a health claim.  ”

Mr Doucas – who does not act for any of the parties – said that he does not believe that Manuka Doctor or Manuka Pharm give the impression that they are medical products or endorsed by a doctor.

“To suggest that something that says Manuka Doctor on it would imply a therapeutic claim from a doctor, or that such a brand name would confuse the average New Zealander, suggest they have little regard for the average person’s intelligence.”

“You now have to be careful if your label carries words that may imply a product is good for you, or you risk breaching the Nutrition, Health and Related Claims Standard of the Australia New Zealand Health Code – but these brand names hardly qualify.

“In the case of health claims, the product has to say ‘this is good for you’ and this product does not do that.”

“The courts did not take into account the broader implications of this ruling. They’re basically now giving the bureaucrats a license to wreak mayhem if they so choose. Anything that’s not proven in science – whether it has been researched or not – is now vulnerable.”

 “There are many brands that have as a registered trade mark a replica of the Red Cross’ logo, in colours other than red. Are they now at risk of making a health claim too? Do we have to be careful of words like ‘nourishing?’

“A very dangerous precedent has been set and the implications of this ruling, and the actions of civil servants like MPI, could be very far reaching,” Mr Doucas said.

The decision is being appealed.

 

THEODORE DOUCAS
Principal
24 March 2016