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  • Writer's picturePatrick Dawkins

Setback on Home Soil – ‘Manuka Honey’ Trademark Denied in NZ

It was seen as the opportunity to get New Zealand’s Manuka Honey trademark bid back on course, but a ruling by the Intellectual Property Office of New Zealand (IPONZ) against the local applicants on May 22 has the group representing Kiwi honey producers and iwi yet again scrambling to chart an appropriate route forward. So, having previously failed in their certification trademark (CTM) bids in the United Kingdom and European Union markets, where are the efforts falling short? And, where to now for a New Zealand honey industry seeking to gain protection over the term ‘Manuka Honey’?

Te Pītau director Lynell Tuffery-Huria headed the group’s legal advisory committee in their failed efforts to gain a certification trademark over ‘Manuka Honey’ in New Zealand. The experienced patent attorney was optimistic for a favourable decision in “the home of mānuka”, but has been left "hugely disappointed".

“Devastating”, “hugely disappointing” and “very tough” is how key decision makers are describing the IPONZ decision to rule against the CTM application of the Mānuka Honey Appellation Society (MHAS), which was backed and guided by iwi through the Mānuka Charitable Trust and their operating arm Te Pītau Ltd.

New Zealand producers first launched the application in 2015 through the Unique Mānuka Factor Honey Association (UMFHA), before the application was assigned to MHAS. It has subsequently been beset with delays due to legal technicalities, as well as Covid enforced lockdowns. In the meantime, MHAS suffered setbacks as bids to achieve CTMs in the UK and EU intellectual property offices failed in the face of opposition from Australian producers, among others. On New Zealand soil, the Australian Manuka Honey Association (AMHA) was once again the opposition, but hopes were high for a home win.

“This case represents a trans-Tasman tussle of extraordinary proportions over trade mark rights for mānuka honey. It is one of the most complex and long running proceedings to have come before the Intellectual Property Office of New Zealand,” begins the 171-page ruling document authored by IPONZ assistant commissioner of trade marks Natasha Alley.

The aim of the New Zealand honey groups was to gain exclusive use of the term ‘Manuka Honey’ for Kiwi producers, with their argument centring around the belief that consumers, when buying mānuka honey, expect it to come solely from New Zealand, and that mānuka is a taonga (treasure) to Māori people that is afforded protection under the Treaty of Waitangi – namely due to the ‘Wai 262’ claim regarding Aotearoa’s native flora and fauna.

However, the Australian opposition has been ruled successful, calling into question the ability of the New Zealand bid to prove ‘distinctiveness’, in the eyes of consumers, between that of mānuka honey from New Zealand as opposed to anywhere else (Australia, for now), as well as the role of the Treaty alongside trademark law.

Pita Tipene, chair of the Mānuka Charitable Trust, is devastated at their failed trademark bid in New Zealand, and believes New Zealand needs to assess the whole intellectual property framework as it pertains to Māori rights provided under the Treaty of Waitangi.

The reactions

Lynell Tuffery-Huria, a patent attorney and Te Pītau director, led the group’s legal advisory committee and says the ruling comes as “hugely disappointing”.

“We were optimistic about a good decision here in New Zealand, the home of mānuka, but the decision is indicative of the intellectual properties regime and its inability to be flexible around taonga species such as mānuka,” Tuffery-Huria says.

Mānuka Charitable Trust chair Pita Tipene voices similar sentiments.

“We are devastated at this decision and really disappointed that it is out of step with intellectual property law, particularly as it pertains to indigenous peoples, not just in Aotearoa-New Zealand,” Tipene says.

The ‘Descriptive’ versus ‘Distinctive’ stumbling block

Under intellectual property law, the applicant is required to prove their case in the face of any opposition, and for the MHAS/Te Pītau case that meant proving the term ‘Manuka Honey’ was more than just a mere descriptive honey variety, but a distinctive mark of honey from the Leptospermum scoparium plant grown in New Zealand.

“A trade mark that is descriptive of goods, and therefore not distinctive, cannot be registered for those goods unless the trade mark has acquired distinctiveness, either through use or any other circumstance. Generally speaking, the reason for this requirement is that descriptive words should be available for use by the public and honest traders, rather than being monopolised by the trade mark owner,” the IPONZ ruling states.

On that note, the ruling was that MHAS “fell short of establishing the necessary distinctiveness, both inherent and acquired”.

That decision aligns with the UK ruling in 2021 that concluded, “Based upon the way the mark is presented to the consumer and the understanding of the consumer of what the sign indicates, we have little hesitation in concluding that the sign “MANUKA HONEY” is not only descriptive, but is a term that has become customary in the current language of the trade and the bona fide and established practices of the trade to indicate a type of honey”.

The role of Te Tiriti

While the IPONZ and UK rulings on distinctiveness are in step, Tuffery-Huria says they were optimistic the weight of Māori rights in New Zealand would hold greater sway.

“We don’t think the Treaty law can overrule the trademark law, but we are definitely of the view that Te Tiriti could colour how you interpret the intellectual property framework. That's a well-established concept of law that Te Tiriti does as one of the founding documents. It’s called the concept of legality. And so, unless it is specifically excluded, then there is a basis to interpret the legislation in a manner that is consistent with Te Tiriti,” the lawyer says.

While there is no precedent for that in the intellectual properties framework, Tuffery-Huria says there has been in the health regime and Resource Management Act, among others.

“There's definitely been a willingness and an interpretation of those legal frameworks in a manner that's consistent with Te Tiriti. The Resource Management Act does have a specific provision on Te Tiriti but, irrespective of that, there is some interpretation that is open to considering a different view than the standard interpretations of the concepts that are within the Trademark Act, and the intellectual property framework in general,” she says.

In the IPONZ ruling, Alley writes that “careful consideration” was given to the taonga status of mānuka – both as a plant and as a te reo Māori kupu (word). She also notes “The protection of te reo Māori kupu and Māori intellectual property rights are undoubtedly of critical importance and have been recognised as such by the Waitangi Tribunal”, while also citing the findings of the Wai 262 report, before concluding.

“However, Waitangi Tribunal recommendations are only binding to the extent they have been incorporated into statute by the legislature. Tikanga (Māori custom) principles are relevant, but cannot override clear provisions in the Trade Marks Act, which I am required to apply.”

New Zealand trademark law is shaped, in part, by globally coordinated treaties, which affect the scope of both New Zealand’s central government and the Courts to alter the intellectual property framework.

“IPONZ has made that decision based on the law they have in front of them, which tells you something about our own law,” Tipene says.

“That is not keeping in step with Wai 262 on protection of flora and fauna and intellectual property here in our own country. We have to look at the whole legal framework as it pertains to intellectual property, because we are starting with mānuka, which is our focus, but how will this affect intellectual property as it pertains to Māori indigenous rights here in New Zealand and across the world?”

Where to from here?

With the IPONZ decision still raw, public reaction from around the New Zealand honey industry has been resolute behind the continuation of the bid to claim ownership of ‘Manuka Honey’, one way or another.

Comvita, a leading New Zealand mānuka honey exporter and backer of the New Zealand CTM efforts was fast to display a show of force through chief executive David Banfield.

“We are hugely disappointed by the decision shared by IPONZ today,” Banfield said in a statement.

“We remain fully committed to work alongside the Mānuka Charitable Trust to support the protection of Mānuka as a taonga species from Aotearoa New Zealand. We see this as a long-term commitment and are undeterred by today’s unfortunate decision.”

Those at the coal-face of the protection efforts have already begun “rallying the troops” Tuffery-Huria says, with a busy period of meetings taking place in the weeks between the May 22 IPONZ ruling and the June 20 deadline for them to decide whether to lodge an appeal.

Australian “manuka” honey, not the real deal say those behind New Zealand’s certification trademark efforts, but a product which remains labelled as such due to the Australian Manuka Honey Association’s successful attempts to block Kiwi trademark applications in several key markets.

“We will be considering all the options and we have been considering different approaches for a long time, given the negative decision in the UK.”

This year MHAS lodged a new CTM case in the UK. However, the legal efforts to prove New Zealand honey producers are worthy of being granted trademark status over the term ‘Mānuka Honey’ clearly need some rethinking.

There is also always the hope that a geographic indicator (GI) – such as products like Champagne wine or Feta cheese hold – might one day be established for mānuka honey. With GIs set during trade negotiations, gaining them is difficult in trading blocks in which Australia also holds sway and can negotiate against such GIs being granted to New Zealand. However, the NZ-EU trade agreement struck last year does provide greater assurances to Europe’s recognition of taonga Māori species, plus a specific Māori Trade and Economic Co-operation chapter, giving hope that there could be further gains made.

“These things just take time to work through, but also to pull the troops in behind. So that we are on one waka and heading in the same direction,” Tuffery-Huria says of their plans.

Seeking continued support

Essential to getting on board that waka are major financial backers the Government, UMFHA, whose membership includes a large swath of the New Zealand honey industry’s packers and marketers, plus other major donors from around the mānuka honey industry. Comvita’s public backing on the day the decision came out is one thing, but the meetings behind closed doors over the next few weeks with the remaining key stakeholders will be critical to the new path forward.

In the immediate aftermath of the IPONZ decision Tuffery-Huria says Te Pītau was feeling supported and commitment was still there from the key backers.

For Tipene and the MCT, their resolve is strong as they hope to chart a more lucrative course forward in a journey of Mānuka Honey protection that is heading towards a full decade with few wins.

“We really need to bring some collective wisdom to this. We need to make sure that we know the detail of the determination and then find the best path in which to protect our taonga, the mānuka plant and mānuka honey, because we're not daunted by this determination,” The Mānuka Charitable Trust chair says.

“We're going to double – triple – our efforts now to ensure that others, and in this case, the Australians, are not stealing our rights for commercial gain.”

After being an integral player in New Zealand’s efforts to protect the term ‘Manuka Honey’ since the inception of the legal efforts in 2015, now-former UMFHA chief executive John Rawcliffe vacated the role on May 31.


Rawcliffe Resigns

After being at the forefront of the efforts to secure ownership of the term ‘Manuka Honey’ for New Zealand producers since 2015, John Rawcliffe stepped down from the role of UMFHA chief executive on May 31.

UMFHA Board chair Rob Chemaly informed members of the news via email, stating that Rawcliffe “played a significant role in UMFHA’s development, bringing a strong science and technical skillset to grow the organisation and its UMF™ quality mark into a world-leading standard for mānuka honey, one that is recognised around the world”.

The association will work through a recruitment process to appoint a new chief executive, with Chemaly saying the board will update members at their AGM on Wednesday June 28 in Rotorua. Rawcliffe’s contributions will also be recognised there.

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