Mānuka honey by any other name would be as sweet – but would it be as lucrative? NZ and Australia fight over whether its name can be trademarked as distinctively Kiwi.
The opening of the US judgment is to-the-point: “The parties find themselves in a sticky situation,” says the panel of judges in the Ninth Circuit Court of Appeals.
The new California court ruling is in a class action against Trader Joe’s, a retailer that markets its store brand mānuka honey as “100% New Zealand mānuka Honey”. It isn’t – it’s only about 60 percent from mānuka nectar. But the court ruled: “100% could be a claim that the product was 100 percent mānuka honey, that its contents were 100 percent derived from the mānuka flower, or even that 100 percent of the honey was from New Zealand.”
READ MORE:
* Part 1: Lockdown protracts fight to protect mānuka honey as Kiwi
* Part 2: Mānuka honey dispute: What’s in a macron?
It’s cases like these that highlight the challenge for New Zealand’s mānuka honey producers, who have been trying (and failing) to put out fires like Trader Joe’s for years. But now, after fighting unsuccessfully around the world to trademark mānuka honey as a distinctly New Zealand brand, they are close to putting their case to New Zealand’s own Intellectual Property Office.
So what’s to decide? There is little doubt that the scraggly bush Leptospermum scoparium has grown for many hundreds of years in both New Zealand and Australia.
There is also little doubt that the anti-bacterial powers of the honey made from that bush have become known to commercial producers only in the past 40 years, since Waikato University’s Dr Peter Molan and Kerry Simpson discovered its unusual therapeutic properties.
The question that has troubled beekeepers, lawyers and ultimately the courts since 1995 is this: can anyone, specifically New Zealand, own the rights to the name, to the brand, to the marketing phenomenon that is “mānuka honey”?
New Zealand mānuka is to honey what Dom Perignon is to bubbly. A 230g jar of good 1900+ MGO New Zealand mānuka honey sells for £2595 (NZ$5170) at Harrods of London, this week.
Bees make mānuka honey from Leptospermum scoparium, also known as mānuka or tea tree. Research has demonstrated antibacterial, antifungal and anti-inflammatory qualities – but those were discovered only recently. For the previous 150 years since Methodist missionary Mary Bumby introduced honeybees to the Hokianga, mānuka honey had been regarded as inferior to clover honeys.
Now, honey is big business. NZ honey exports were valued at more than $500m last year. As it’s grown more lucrative, it has been more bitterly contested. Tests on so-called mānuka honey sold in the US and the UK have regularly shown other honeys blended into it, often by producers in Asia and eastern Europe. Cracking down on those has become a frustrating game of whack-a-mole for NZ trade agencies and big New Zealand mānuka honey producers like Comvita.
The Mānuka Honey Appellation Society first applied to trademark the name of the honey in 2015. That was eventually accepted by the Intellectual Property Office NZ, after rigorous examination by Trade Mark Examiners.
But after the Intellectual Property Office published its decision in 2018, the Australian Manuka Honey Association lodged an objection. It argued the brand “manuka honey” was not distinctive, was likely to confuse consumers, and in any case, the Appellation Society didn’t own the trademark.
Perhaps stung by that rebuke, the society has now morphed into a new entity, the Mānuka Charitable Trust representing iwi, government and the honey industry.
“There are some similarities to when wine producers everywhere started branding their sparkling wines as champagne, until the French took ownership. Now anything labelled champagne must be from that region. For us it runs even deeper because mānuka is our taonga and our reo.”
– Pita Tipene, Mānuka Charitable Trust
“The goal is to protect the term ‘mānuka honey’ internationally so that it may only be lawfully used on honey produced in Aotearoa,” says trust chair Pita Tipene. “For Māori, this means that our reo is respected and a precious taonga is being honoured and protected.
“For consumers, it means that they can trust they are getting genuine honey produced in New Zealand from our mānuka trees. It also protects the industry, export earnings and jobs.
“There are some similarities to when wine producers everywhere started branding their sparkling wines as champagne, until the French took ownership. Now anything labelled champagne must be from that region. For us it runs even deeper because mānuka is our taonga and our reo.”
But Australian Manuka Honey Association board member Ben McKee says losing the right to brand its product as manuka honey would be a critical blow for the industry. And he argues a convincing case. “We believe they are motivated by commercial reasons [yes] in pursuit of a trademark [yes indeed] that will exclude Australian beekeepers and bioactive Australian manuka products from using the brand [yes, absolutely!].
“Unfortunately this fight is set to be resolved in a courtroom,” he tells Food Navigator Asia. “It is disappointing that the legal action has continued to this point. Australian producers have no choice but to vigorously defend the trademark action, despite the significant cost of doing so.”
McKee argues New Zealand’s mānuka came from Australia originally, but it is when he gets to justifying Australian rights to the name that he gets a little cagey. “As for the origin of the name, this is of some debate and whilst we do acknowledge Māori use, the name manuka has been used to describe the tree in Tasmania, Australia, since the 1880s too.”
Steffen Gazley, the hearings Manager for the Intellectual Property Office, said that once the substantive hearing had finished, the Assistant Commissioner would issue a decision.
“That decision will set out whether the manuka honey certification trade mark application will be registered or not,” Gazley told Newsroom. “The Assistant Commissioner’s decision can be appealed to the High Court.”
Except … after the claimants gathered in Wellington, the country was put into Level 4 lockdown, and the August 18 hearing delayed. A new date is still to be set – and the drawn-out legal battle is drawn out even further.
The two honey groups are fighting a proxy war; behind them in the shadows are the New Zealand and Australian Governments. New Zealand agencies including the Ministry of Foreign Affairs, Ministry of Business, Innovation and Employment, and Ministry for Primary Industries are all involved in the Mānuka Charitable Trust action, says representative John Rawcliffe.
And the Australian Government has been “very supportive” of the stance of its manuka industry, says McKee.
Despite this, both are pleading impoverishment as the legal battle drags on. New Zealand’s Mānuka Charitable Trust says it has asked Economic Development Minister Stuart Nash for more funding after burning through most of the $6m the Government gave it in 2019.
And the Australian association is fundraising on its website to “fight the New Zealand manuka trademark and protect our beekeepers and industry”. So far, the site says, it has received a grand total of $80 in donations.
