Australia: Agribusiness sector effectively protects brands with trade marks

Intellectual Property Alert: 4 Dec 2012
Last Updated: 5 December 2012
Article by Hayden Delaney

Heightened competition in the agribusiness sector means the issue of branding has become increasingly important for primary producers and marketers. Branding is key in competitive trade as it differentiates products from others in the market, helping to maintain the long-term sustainability of a business.

Branding is particularly important in the agribusiness sector because products are often heavily commoditised, which makes like products indistinguishable. Products can be effectively differentiated from similar products through brand association and trade mark registration.

Senior associate Hayden Delaney and law clerk Chloe Richardson explain the tools available to protect products in the agribusiness sector, and outline two recent court cases that show how proactively taking legal steps to protect your brands can pay off in the long run.

Key points

  • Registering trade marks allow businesses to develop a brand while ensuring that the brand remains protected in the process. By registering the brand as a trade mark, the business is able to protect it from exploitation.
  • A trade mark is a sign used to distinguish goods or services dealt with or provided in the course of trade by a person or a business from goods or services so dealt with or provided by any other person or business.
  • Two recent court cases demonstrate how branding can alter the perception of ordinary commoditised products in the minds of consumers, and how trade marks play a important role in protecting this perception.

Case studies: Branding in the agribusiness sector

In a recent case, a company called Seven Fields commenced Federal Court proceedings to protect its Sweet Cheeks mango brand. It argued that another company was using a mango carton that was deceptively similar to the carton that it used to market the Sweet Cheeks brand. In particular, the offending company's carton used the same design, colour scheme and type face.

The matter was settled before trial, with the offending company agreeing to pay costs to Seven Fields and to immediately stop using the existing packaging for the mango cartons.

In another recent case, a company known as Pacific Coast Eco Bananas commenced Federal Court proceedings against an offending supplier that sold purple wax tipped bananas. Pacific Coast has ten registered trade marks, four of which relate to wax tipped bananas. The offending supplier was restrained from selling or supplying wax tipped bananas and ordered to pay almost $50,000 in damages.

This decision affirms Pacific Coast's effective monopoly over all colours of opaque coatings applied to bananas, despite the fact that they primarily sell red wax tipped bananas. The trade mark portfolio of Pacific Coast has become immensely valuable to the business, and is a legally-enforceable point of difference.

Why trade marks are essential for agribusiness products

Practically speaking, trade marks help consumers differentiate competing goods and services from each other. The essential purpose of a trade mark is to serve as a 'badge of origin', indicating a connection between the goods or services and the associated brand.

A trade mark may consist of a number of branding tools such as a word, logo, name, picture, shape, colour, sound and scent. In the agribusiness sector, a common point of differentiation often comes in the form of a colour, and colours are, in certain circumstances, capable of being registered as a trade mark. This can encompass the packaging in which the goods are sold, or the colour of the goods themselves. An agribusiness may also wish to establish a brand by associating their business with a particular colour used in their packaging.

In addition, the registration of a trade mark offers a wide protection for the brand associated with the trade mark. The registration of a trade mark prevents any other person from using a sign that is substantially identical with or deceptively similar to the trade mark, if the goods or services are the same or similar as those for which the trade mark is registered. This ensures that the value of the brand and its point of difference are preserved.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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