Asia IP

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 commoditized, which makes like products indistinguishable. Products can be effectively differentiated from similar products through brand association and trademark registration.

This update explains 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 trademarks allows businesses to develop a brand while ensuring that the brand remains protected in the process. By registering the brand as a trademark, the business is able to protect it from exploitation.

• A trademark 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 commoditized products in the minds of consumers, and how trademarks 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 trademarks, 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 A$50,000 (US$52,700) 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 trademark portfolio of Pacific Coast has become immensely valuable to the business, and is a legally-enforceable point of difference.

Why trademarksc are essential for agribusiness products

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

A trademark 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 trademark. This can encompass e packaging in which the goods are sold, or the colour of the goods themselves. An agribusiness may also thwish to establish a brand by associating their business with a particular colour used in their packaging.

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

HopgoodGanim
Level 8, Waterfront Place,
1 Eagle Street,
Brisbane, QLD 4000
Australia
T: +61 7 3024 0000
F: +61 7 3024 0300
E: h.delaney@hopgoodganim.com.au
W: www.hopgoodganim.com.au

About the Author

Hayden Delaney is a specialist lawyer focusing on intellectual property, the information, communications and technology sectors, and competition law at HopgoodGanim in Brisbane. Delaney’s expertise in intellectual property has seen his involvement in a multitude of commercial and litigious matters, including those involving copyright, trademarks, patents, designs and plant breeders’ rights. Delaney was named ACS Queensland’s Young ICT Professional of the Year in 2010 and is a member of its Executive Committee for 2012 and 2013. He formerly sat of the Queensland Management Committee for the Intellectual Property Society of Australia and New Zealand and was also previously a member of their Trans-Tasman Committee.