Saturday, December 2, 2023

Mānuka saga shows up gap in law

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Decision in Australia’s favour shows gap in law, says IP expert.
IP lawyer Tonia Brugh said misappropriation of NZ taonga, and the opportunities that brings, will not end with the mānuka honey saga.
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Mānuka honey will remain a lost opportunity to tell and sell a truly New Zealand story unless there are significant changes made to this country’s rules on indigenous ownership and identity.

James & Wells Tauranga-based trademark and intellectual property (IP) lawyer Tonia Brugh said the recent decision by NZ’s Intellectual Property Office (IPONZ) to support Australian honey producers’ claim to use the term “mānuka honey” was as disappointing as it was inevitable.

This is because NZ trademark law does not recognise the exclusive association of Māori trademarks with Aotearoa New Zealand.

Brugh brings a distinctive perspective to her take on the decision, having spent her formative years living in Rarotonga and working as an advocate for Pasifika and Māori entrepreneurs. 

Her pro-bono work also includes supporting the Te Aka Māori Dictionary and working with Māori-owned television and content company Long White Cloud Productions.

The Mānuka Charitable Trust has announced it will not be appealing IPONZ’s ruling that Australian producers can use the words “mānuka honey” to reference honey products originating outside of New Zealand. 

Brugh said to do so may have been a case of throwing good money after bad, given NZ trademark law provides little recognition for indigenous IP.

In her ruling on the use of the phrase, IPONZ Assistant Commissioner Natasha Alley noted with sympathy that while tikanga principles were relevant, they could not override the Trade Marks Act, which makes no allowance for such cultural definitions. 

Her ruling essentially noted the phrase “mānuka” had been in use for so long it lacked the distinctiveness of a trademark.

Brugh said any re-working of trade mark law needs to incorporate the intentions of the Wai262 claim, one of the most complex in the history of the Waitangi Treaty settlements. 

Sometimes known as the “flora and fauna” claim, it addresses ownership and use of Māori cultural expressions, species and taonga, and demands the re-examining of policy areas under existing law of over 20 government agencies. It was announced over a decade ago.

“The government will claim it has made inroads, but really that is only in limited areas. These include having a Māori Advisory Committee for trademarks, and one for patents, but in either case they do not go far enough and won’t until the legislation itself is changed to recognise Wai262,” Brugh said.

Her concerns echo those expressed by Mānuka Charitable Trust chair Pita Tipene after the ruling. He expressed disappointment that iwi’s role in protecting taonga species including mānuka was not contestable under NZ law.

Another option to protect such indigenous brands could be through geographic indications (GI)s. These offer protection on specific food and beverages from specific regions, such as Parmesan cheese from Parma in Italy, Champagne from Champagne in France, or balsamic vinegar from Modena, also in Italy. NZ wines and spirits have GIs for regional protection.

“Geographical Indications can be created, but you have to be prepared to put in some effort and spend money to put them in place, and if you do not have good law supporting them, then they can be weak too,” Brugh said.

Having GIs in place will require significant gathering of evidence over the entire mānuka honey production process. 

The Italian GI “bible”, for example, has risotto rice from the Po River area defined by a specific product description, production method (including seed sourcing), appearance, flavour, and its sharply defined production area.

“GIs are not cheap, but we do have them for wines and spirits, and could have them for other products.”

Brugh finds it ironic at a time when NZ is being told to market its “story” and food’s provenance that the unique aspect of indigenous taonga lacks protection.

“This use of our taonga by others is not going to go away. You can argue the morality of it, but the Australians clearly saw an opportunity and took it. 

“We are happy to amend legislation like the Resource Management Act. 

“Perhaps the government could stand behind the recommendations set out in Wai262 and make important amendments to our current legislation to protect indigenous IP.” 

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