The New Zealand producers of mnuka honey suffered a setback as a result of the recent decision in “one of the most complex and long-running” trademark cases. However, it also served to emphasize how inadequate our laws are when it comes to safeguarding Mori taonga (treasures) and mtauranga Mori (traditional knowledge).
The question of whether the Mnuka Honey Appellation Society could register the term “Manuka Honey” as a certification trademark in Aotearoa New Zealand was at the center of the case, which was decided by the Intellectual Property Office of New Zealand (IPONZ). A group of producers from New Zealand is represented by the society.
The society would have been able to market honey made from the nectar of the mnuka (Leptospermum scoparium) plant solely under the Manuka Honey name (without the tohut or macron over the “a”). Australia’s honey producers were against such a move.
A type of trademark known as a certification mark is one in which the owner independently verifies that their products have particular, clearly defined characteristics. The imprints empower proprietors to market items that are obtained from explicit geological regions or delivered utilizing specific techniques.
Assuming it had been fruitful, the general public would have just permitted New Zealand-based makers to utilize the brand name on their items.
The topic of uniqueness
The mānuka case traces all the way back to 2015, when New Zealand honey makers held up an application for the Manuka Honey brand name. The Australian Manuka Honey Association opposed the application on the grounds that the proposed trademark lacked distinctiveness and was merely descriptive.
To put it another way, the Australian producers claimed that their honey, which was made from the nectar of the mnuka tree, was what the trademark meant. This is important because one of the main requirements for getting a certification trademark in New Zealand is that the mark needs to be able to tell one producer’s products apart from those of another.
The distinctiveness test entails determining whether the “average consumer” would view the certification mark as a typical means of identifying the products at issue.
IPONZ reasoned that the normal shopper wouldn’t view the proposed Manuka Honey imprint as unmistakable. This was largely due to the fact that this term was already widely used by Australian and New Zealand honey producers prior to the submission of the application.
Mnuka as taonga Despite the fact that the word “mnuka” comes from the Te Reo Mori language, the Leptospermum plant is also native to Australia, where it is commonly referred to as the “tea tree.” Leptospermum scoparium is thought to have come from Australia and probably traveled to New Zealand before the last ice age, probably with the help of birds.
Today, north of 80 distinct Leptospermum species fill in Australia. Any one of these could serve as a honey source.
Despite the fact that mnuka in Aotearoa and Leptospermum scoparium in Australia are the same species, the plants, the honey they produce, and their cultural significance are distinct.
Mnuka is regarded as a taonga by Mori because it is both a kupu and a plant. Critical mātauranga Māori exists according to mānuka. The plant has been used by Mori for a long time for a variety of purposes, including cosmetics, the production of objects like waka, and medical treatments.
Mtauranga Mori are the source of a significant amount of the knowledge regarding the distinctive characteristics of mnuka. Mori, on the other hand, rarely, if ever, profit from the commercialization of mnuka honey, especially by businesses operating in other countries.
Limitations of IP law in New Zealand The mnuka case reveals some of the flaws in Aotearoa’s intellectual property system, particularly with regard to the protection of taonga plants and mtauranga Mori.
Natasha Alley, Assistant Commissioner of Trademarks, stated that when deciding the case, she “carefully considered” the mnuka’s taonga status in addition to tikanga Mori and Te Tiriti o Waitangi/Treaty of Waitangi. The “critical importance” of Mori intellectual property rights was also acknowledged by Alley.
In any case, she reasoned that these variables didn’t offset the “unmistakable arrangements” of the Exchange Imprints Act which doesn’t need IPONZ to consider the taonga status of kupu or plants, or the presence of mātauranga Māori, while assessing confirmation mark applications.
The need to provide legal protection for taonga and mtauranga Mori, including through the intellectual property system, has been discussed for a considerable amount of time in Aotearoa. In accordance with Te Tiriti, the Wai 262 claim of 1991 asked the Waitangi Tribunal to correct Crown policies and laws that denied Mori control over taonga.
The Waitangi Tribunal issued a report in 2011 with specific recommendations for reforming New Zealand’s intellectual property laws to protect taonga and mtauranga.
Even though the Wai 262 report was released a year and a half ago, not all of its recommendations have been implemented. For example, the law gives no type of assurance to mātauranga Māori explicitly. To address concerns raised by Wai 262, the government is considering a number of reforms, but their full implementation will take years.
To differentiate their products from Leptospermum honey produced in Australia, New Zealand’s mnuka producers could look into alternative certification trademarks or cultural branding.
Businesses that sell mnuka should also be required to adhere to culturally appropriate standards, particularly when mtauranga is involved, in addition to passing the distinctiveness test for any new certification marks.
Despite the fact that New Zealanders came out on top in the name contest, it may still be possible for them to win over customers who are looking for goods that reflect the distinctive bicultural character of Aotearoa.
Source – theconversation
