The IPONZ Mānuka Decision and Next Steps
Few people have a better understanding of the major factors influencing New Zealand’s desire to secure ownership of the term ‘Manuka Honey’ than Ian Fletcher. Now semi-retired, Fletcher’s working career as a top-level civil servant included a stint as CEO of the very UK Intellectual Property Office (IPO) where the battle for Manuka Honey continues. Until recently he has advised key groups leading the charge on behalf of Kiwi honey producers – Mānuka Honey Appellation Society (MHAS) and Unique Mānuka Factor Honey Association (UMFHA) – leaving Fletcher uniquely placed to offer what many will consider a controversial opinion on the next moves in the honey ‘stoush’.
I generally don’t write about beekeeping in the Advocate, but the decision released by the Intellectual Property Office of New Zealand (IPONZ) last week, rejecting the MHAS application for a certification trade mark for mānuka honey, has led to a lot of consternation in the industry and among commentators. I want to look at what might be done next.
The IPONZ decision leaves the New Zealand industry at a crossroads, but not the one many think. Whether or not the decision released last week should be appealed is for others to consider. I think the real issue is how to reconcile our ‘inner’ world, involving the evolving balance of Māori and non-Māori interests, small and larger beekeepers and different manuka-producing regions of our surprisingly large country against our shared interest to do as well as we can collectively in foreign markets, consistent with meeting consumer protection rules and consumer expectations.
Let’s remember the original objective: to protect the term “mānuka honey”, so the extra value that was accruing to this suddenly valuable product came back to New Zealand. Otherwise, others will produce their own, it will be commoditised and cheapened, and our shared national IP and brand value will be eroded. Like kiwifruit.
The corollary is that if we have a reliable flow of extra value then it’s worth taking care to divide that value up equitably as we see fit, properly rewarding Māori as part of that process. But crucially, the value comes from foreign consumers, the ones who pay the extra. Without them, it’s all an expensive conceit. It’s consumption that counts, not production.
A soldier I once worked with summed it all up: “when you’re up to your armpits in alligators, it’s easy to forget the original objective was to drain the swamp”. He had a cheerful cartoon to drive home the point. I consider we all need to remember the objective here is to secure the value of this great honey for New Zealand. How we get there is secondary. Whether the IPONZ decision is appealed is very much a matter of tactics. I would say that IPONZ have taken extraordinary pains over their decision, and that needs to be acknowledged.
So, what now?
The first thing to remember is that effective protection for mānuka honey means protection in foreign markets. We know that steps to protect the mānuka name will mean choices as to trade marks or Geographic Indications. These are matters of legal form and practical choice. What really matters is not the form we choose but what our opponents will do. The one fact above all that emerges for me from the New Zealand case last week, from the UK case before it, and from the EU and Chinese cases, is that we have serious opponents, and we underestimate them at our peril. There is money in mānuka honey and they want to get it just as much as we do. They have agency, and they often have home-ground advantage. We have two options: beat them or deal with them. I now think only the second option – making a deal – is realistic.
I’m told I’ve got in trouble for saying this before. So, let me double down. I don’t think we can actually ‘beat’ foreign producers of competing honey in foreign IP courts any more. I think mānuka honey from New Zealand was distinctive once, but we have not been able to put the evidence together. So, to win a good place for our product and anything like a fair return for our people, we need to be prepared to settle with our opponents, and agree a shared Geographic Indication, or something similar. Otherwise, we will just compete on price, and lose as foreign production steps up. Like kiwifruit.
Pronouns matters. I’ve said “our” in the paragraph above deliberately because this has to be a whole-industry effort, and it has to be a whole-country effort. Within the industry, we need to fix poor governance. Everyone needs to be properly included, big, small, Māori and non-Māori.
Can you negotiate taonga?
Within that context, Māori leaders rightly challenge me with their view that their taonga cannot be negotiated with, or bargained away. That’s an important point. My response is two-fold: firstly, commercially, we’re at the point where foreign competitors can just ignore Māori concerns, use the word mānuka (or manuka, spelling the word either way in latin text), and help themselves. I’ve focused on Australia because their competitive place is disclosed, organised and immediate. But we export mānuka seeds and seedlings globally, and others will follow. If we can make a deal with Australian producers, we have a chance to build a shared ‘moat’ against future unbridled competition. Second best, yes. but maybe better than anything else.
Secondly, there is the values point: why we should compromise at all, given the values at stake? My answer is that we set out down this route precisely because their was commercial value to be secured for everyone’s benefit. Refusing to engage with the world as we now find it risks the futile gesture of the martyr. I argue that it’s better to get the best outcome we can from the world we’re in, learn from the experience, and do better next time.
PM to PM
And to do this we need to re-engage government at a political level (ie not MPI, a hapless side show if I ever saw one). The IPONZ decision is about Australia, and as we all know, the trans-Tasman relationship is managed Prime Minister to Prime Minister. Hipkins’ silence is eloquent: he may well see all this as a noisy and unwelcome distraction. Until we offer a credible path to peace, he’s right. He wants to see himself as an ANZAC peacemaker: welfare rights for Kiwis in Oz, 501 deportations defused (a bit), a path to citizenship there for many of us. He won’t make war on Australia in these circumstances; we need to give him a basis to lead the way towards a decent settlement with the producers of – dare I say it – manuka honey in Australia.
One of my predecessors as head of the UK Intellectual Property Office – Alison Brimelow – used to shout on these occasions “being right is not enough!” We are right, but it’s not enough and it won’t do. Time to face some facts.
Full disclosure: I was an adviser for the UMFHA and MHAS until I withdrew from that for medical reasons just over two years ago. UMFHA asked me to come back to advise after their defeat in the UK IPO at the end of 2021. I was briefly elected Chair of MHAS in early 2022 until I withdrew from that role after a few months. Historically, I was CEO and Comptroller-General of the UK IPO 2007-9. Today, I act as an adviser to NZ Beekeeping Inc.