Trademark Applications

You don’t get too many arguments when a regional name indicates only a geographical source of food or drink, arguing to be able to use that location when your product doesn’t come from there is rather silly. Oh that it was so simple.

In the way of things regional names gain greater meaning over time. They start to signify a certain grade and style of product that is peculiar to that region and then the fact that it is a place name is lost and the symbol represents things less tangible. When the name becomes a valuable trade name with a reputation those who think they have a right to that value get very defensive. What is wrong with that?

Well take it the next step to where the name signifies a category of product that may once have been just a region but now is not. How can you claim exclusive rights to making a certain category of product? We protect with patent a design or process, intellectual property gives some rights to the owner but we are talking about the name of something that many people have the ability and opportunity to produce. The dispute is about the name not the (re)production.

This is related to trademarks that become diluted because the meaning moves from a product that was the name of the eponymous originator to a generic object. So Zamboni was a man’s name that became a generic term for an ice rink groomer. Mr Jacuzzi was a man, now jacuzzi means hot tub. Ditto Hoover, Yale, etc. $$$ Apparently Coca Cola go to a great deal of effort to prevent their brand names from sliding down this path. Should it be agreed that Coke means any cola drink they have just lost their trade name.

So we get to conflicts like the one over the name Prosecco. It is a grape variety and a region and those in Italy who have moved that along now want to own it exclusively. Except that they were not the only ones to work of the use of the variety and developing it into a recognised style … see you in court.

So how do you distinguish between a name that has become common usage, a word that anybody may use, and one that is a trade name that only certain people may use? As usual the people who will make the most out of such a dispute are the professional word choppers.


$$$ I have no idea if these names are now in the public domain or not, I just wanted to use well known ones to illustrate the process.

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Also you don’t need to get bogged down in any of this if the product description is misleading. If you describe something as Greek fetta, the ACCC might well say that it has to come from Greece otherwise that is misleading. If you describe it as Australian fetta, that should be fine.

I agree that this isn’t black and white. I used the example of “fetta” because it is not a region - and the EU is appealing to more nebulous associations with a word, such as you are suggesting, but which I am rejecting. That or the EU is just being the EU, petty and bureaucratic.

It’s complicated though because many Australians / English speakers may not associate the same things with a name that the EU does e.g. champagne, prosecco, sherry. To someone in the EU maybe they are regional. To us, nah. We got on just fine for decades drinking champagne that is not from Champagne.

By accepting the minimum of BS from the word choppers - tell the manufacturer to produce a better product rather than a better lawyer. Unless the name is a registered trademark in Australia.

A straight forward response, but would it be a diplomatic response in trade negotiations?

Is Australia the taker or the giver when it comes to negotiating with the EU might be the better test?

In the mean time it’s not that hard to fit in?

  1. ‘Australian cheese, in the style of Greek Fetta’
  2. ‘Australian bred Puppies genetically related to spotted dogs from Dalmatia’
  3. ‘Member of the Australian Federal Parliament, of Chinese heritage, naturalised and Section 44 compliant’

Or is it?

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In reality you are right. Logic goes out the window and it all comes down to negotiation. I would guess that the EU has greater bargaining power.

  1. The artist formerly known as Prince

tell the manufacturer to produce a better product rather than a better lawyer.

might well be satisfactory from a consumer perspective - and that is really my perspective. When a manufacturer chooses to litigate rather than innovate it is unlikely to benefit the consumer.

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Another Cheese that will need a name change if made here is Havarti, the drink Grappa & Scotch Whiskey is another drink affected, but the word scotch may also be banned from meat names eg scotch fillet may be banned. Article today describes some more items affected by the Geo Indications trademarking:

A list of hundreds of products the EU want renamed under the FTA signed in August:

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Yet another case of self-entitled individuals with grossly overly-inflated egos demanding the intellectual property rights for names that other persons have already been using.

https://celebrity.nine.com.au/latest/kylie-jenner-threatens-legal-action-against-australian-business-rise-and-shine-t-shirt/e2d3edca-0431-49ff-8eb6-0ae652e1543a

Perhaps she will next be threatening to sue the Mackay Regional Council for daring to have a road named Rise And Shine near the town of Yalboroo

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Grappa and Scotch … hmm that will get your motor running.

And another case of a prima donna trying to prevent an Aussie from using their own brand.

https://www.9news.com.au/national/a-current-affair-katie-perry-explains-why-she-is-standing-up-to-us-megastar-katy-perry/df077072-238a-4537-89ca-fcf6d1560985

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An interesting article regarding the outcome of a court case in relation to Plant Breeders’ Rights.

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The first battle is over but the war is not yet won.

I did not know that Fonterra owned Western Star. Looks like it’s time to change the brand of the butter we buy.
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.And another trademark application or applications.

Unbelievable.
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An article regarding Universal Music taking Clive Palmer to task for using their copyright without a licence.

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An article regarding Christian Dior patenting New Caledonia plant extracts long used for traditional medicines.

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An article reagarding the absolute hypocrisy of some copyright holders.

https://celebrity.nine.com.au/latest/michael-jackson-estate-settles-copyright-fight-with-disney/f86911aa-4012-4843-898f-45b55f024902

So it is OK for Disney to threaten all and sundry for unlicensed use ot their intellectual property, but then turn around and rip off someone else’s.

Absolutely disgusting.

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An article regarding a Tasmanian cherry farmer using a new technology after Chinese scammers sold cherries labelled as having been grown by him.

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Vanuatu is demanding compensation from bungee jumping operators.

What next. Other groups demanding payments for things like cricket, soccer, athletics, swimming, rowing, sailing etc, etc.

Enough to make the cat laugh.

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Now some little Aussie burger joint has had the absolute termerity to threaten McDonalds global operations.

I guess that no one should dare start using names such as MacGarbage, MacObesity, MacDisgusting, MacDictator, MacBullyboy or even Machiavellian.

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They’ve renamed it “The Cease and Desist” and received a boost in customers because of the media coverage. Great marketing on their part.

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Thankfully history has not repeated itself after two non-indigenous persons tried to trademark an aboriginal name and sent cease and desist letters to indigenous persons.

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It wouldn’t be right if two indigenous persons tried to trademark that name.

It wouldn’t be legal in Australia to trademark that name in connection with bush medicine (probably, but you never know for sure unless it is challenged in court).

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It is possibly like someone trying to trademark Australian slang or uniquely Australian names (such as koala or platypus). These are common usage by Australians and therefore can’t be trademarked.

Likewise the aboriginal medicine name…common in local provence indigenous language rather than a new word created for business or marketing purposes to differentiate with ones competitors.

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