Food & Beverages

Overview

New Zealand has a long history as a producer of quality food products. Moving from being "Britain's farmyard", with help through pioneering use of refrigeration on board ships, to several other innovations in the creation of desirable edibles such as kiwifruit, apples, value-added dairy products, medicinal honey products, boutique breweries and a growing and successful wine industry.

Henry Hughes IP has wide ranging expertise in working with boutique and large developers of food and beverage products advising domestic and international clients on the full range of intellectual property matters in Australia and New Zealand, including the trade mark clearance searches and filing strategies, patentability of new processes, border protection measures against the importation of counterfeit goods, plant variety/breeder rights.

What we can do for you

We can provide advice on patentability as well as design and trade mark registrability on your food and beverage innovations.

If appropriate we can assist you with preparation and filing of patent, design and trade mark applications in New Zealand and overseas and with associated intellectual property filing strategies. Of course protecting an intellectual property right is only half of the story. We can assist in all steps of infringement proceedings, from drafting and sending cease and desist letters, through to court proceedings in the High Court and beyond (through our associated law firm Henry Hughes Law).

Industry snapshot - NZ wine industry

Let us look at the wine industry as an example of the various IP rights that exist in a product.

"In wine there's truth"*, never a truer word has been said - there is the truth of the terroir and the truth of the passion of the viticulturist and winemaker. (* quote attributed to Pliny the Elder, (Gaius Plinius Secundus, born 23 CE, died August 24, 79) Roman scholar and author of "Natural History" (or Naturae historiae) the oldest surviving encyclopaedia).

By many measures New Zealand is a young country and the wine industry is as old as European settlement. In 2019 the NZ wine industry is celebrating the 200th anniversaryof the planting of the country's first vineyard by Missionary Samuel Marsden at the mission station in Kerikeri, in 1819. The first known wine review dates from 1840.

IP exists in many forms for wine. In a crowded and competitive market, the brand and the story of the brand are key distinguishers. As well as the house brand there may be secondary brands, artwork, temperature indicators and other visual features which serve to differentiate one product from another in the hearts and minds of consumers.

An example of a secondary brand which conveys its own message about quality and source is Babich Wines' use of BABICH across its range of wines and then using another trade mark such as IRONGATE and THE PATRIARCH for select premium wines.

The brand may reflect the story and heritage of the winery. For example, Matawhero Vineyard was founded by the late Bill Irwin and his son Denis. The current owners of Matawhero pay tribute to the founders of their vineyard with their flagship Chardonnay IRWIN.

Obviously the brand or trade mark is key but there is more than that. Some wines come in distinctly shaped bottles such as Mateus (Portugal) and others feature decorative features which may be protectable as a registered design such as the gorgeous artwork that features on the Jules Taylor OTQ bottle.

Once the trade mark is registered the owner has the exclusive right to use and licence use of the trade mark in NZ. Once a trade mark is registered, a border protection notice can be lodged with the Customs Service to hinder the importation of third party wine product that may infringe your New Zealand registration.

Wine from NZ is highly sought after internationally. From 2010 to 2019 the value of wine exported from NZ has increased by approximately 75% to $1.8 billion (based on figures from NZ Wine's Annual Report for 2019).

The NZ registration can be the basis for overseas registrations to protect your brand in your export markets. In some countries the first to register the trade mark is the owner and in others a trade mark registration may be a prerequisite to use in the country.

Ownership of the registration of a trade mark is a requirement for a wine producer to be eligible to claim Wine equalisation tax (WET) produce rebate for wine exported to Australia.

As well as the winemaker's passion and skill, the terroir plays an important role. New Zealand's distinctive wine growing regions each have unique soils and climatic conditions that are expressed in the wines produced. The names of the various wine regions of New Zealand are protected by registrations of Geographical Indications. There are currently 18 (NZ) regional registered GIs.

A registered GI can only be used if at least 85% of the wine is obtained from grapes harvested in the place of geographical origin to which the New Zealand registered geographical indication or indications relate; and all of the remainder of the wine (if any) is obtained from grapes harvested in New Zealand. It is important that GIs are used correctly.

Just as winemakers are passionate about their craft and wine, we are passionate about ensuring a business has all appropriate protection for their important and valuable intellectual property rights.

Updated September 2019


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