23 March, 2017
Spruson

White Cloud Dairy Innovation Limited [2017] NZIPOTM 3 (13 January 2017)

White Cloud Dairy Innovation Limited [2017] NZIPOTM 3 (13 January 2017)

White Cloud Dairy Innovations Ltd (“White Cloud”) applied to register the trade mark KURA in New Zealand in relation to various goods in classes 5, 29 and 30 including nutritional supplements, dietary beverage supplements, dairy products, etc.

The New Zealand Trade Marks Office (“IPONZ”) issued a notice of intention to reject the application on the basis that the Māori dictionary defines KURA as “red, scarlet” which it considered to be descriptive and non-distinctive.

A Hearing was held at White Cloud’s request.

The key issue in this case was to determine the correct approach in assessing Māori words.

White Cloud’s main argument relied on the assumption that the “ordinary consumer” or “the ordinary New Zealander” is not fluent in the te reo Māori language and will only have a limited recognition of the word KURA as meaning a type of school, and no knowledge of its meaning of “red”. White Cloud also argued that the word KURA could easily be understood in New Zealand as belonging to any one of a range of different languages.

IPONZ guidelines place weight on the status of the Te Reo Māori language as an official language of New Zealand. Therefore, trade marks consisting of words in Māori must be treated the same way as trade marks consisting of the equivalent English words.  This was the approach followed by IPONZ in the present case and upheld by the Assistant Commissioner.

In particular, the Assistant Commissioner noted that Red is a descriptive term that evokes a colour that is likely to be associated with the goods covered by White Cloud’s application. Competitors may genuinely want to refer to the colour as a natural description of their own products. KURA is therefore non-distinctive and descriptive.

The Assistant Commissioner directed that White Cloud’s application be rejected

To view the Office decision, click here.

This article is an extract from Spruson & Ferguson’s Asia-Pacific Regional Trade Mark Update. You can view the entire summary here.


TRACEY BERGER

Principal / Trade Mark Attorney
Trade Marks Team
Sydney, Australia
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CAROLE RAABE

Associate / Trade Mark Attorney
Trade Marks Team
Sydney, Australia

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