www.foodtechnology.co.nz 17
branding, name and logo…and the public like it
– but you haven’t done your homework and your
mark is too similar to someone else’s registered
trade mark. You are back to square one and
potentially liable for trade mark infringement.
The F&B market is intensely competitive in New
Zealand and there is a lot on offer (everyone likes
to eat). But you have to protect what you create,
not just the tangible output of that creation.
Long gone are the days of a company’s main
assets being its premises or its machinery. What
entrepreneurs often fail to realise is that most
of the value of their business – what attracts
investors in particular – is its IP, and that’s
especially true of F&B.
If you don’t protect your IP, others will copy
to free-ride and compete; if not from the start,
but once they’ve noticed you because you are
threatening their market share. That may leave
you stranded, despite having a high-quality
product.
Think further
Another common failing is to do a reasonable
job shoring up the IP in New Zealand but not
look offshore to do the same. Again, delay
this and the risk is high that someone visiting
New Zealand will see your product, be highly
impressed and quickly replicate it in their home
country, locking up the IP there as they do so.
IP rights are territorial. New Zealand may be your
starter market and it may be a good one, where
you have success. If the objective is business
growth, however, the bigger (much bigger)
markets of Australia, the United States and Asia
should be on the radar – and work should be
done very early on to get IP protection in those
markets too. You may have a patent or a trade
mark registered in New Zealand, but it may be
too late to get the equivalent in the US.
Maybe your horizons are just these shores and
it’s a fair bet that a product protected here will be
successful. But not as successful as it might have
been. New Zealand as a food-maker and exporter
– and as a place - has a very good brand, which
is an advantage when chasing overseas markets.
Getting IP protection has a cost, of course, but
start-up businesses may be able to source grant
assistance from the likes of Callaghan Innovation.
The payback is undoubtable: market security and
investor interest both require strong IP.
A shield and a weapon
Here’s another Kiwi take on the German
company trying to stop My Food Bag using
‘HelloFresh’. They see it as bullying. In fact,
companies trying to enforce their IP rights are
often seen as bullies. Whilst this specific fight
does seem a bit petty (let’s be real here), IP is
both a shield and a weapon. There is nothing
wrong with defending your IP rights – though
Kiwis seem a bit squeamish about it at times.
Many (bigger) companies see IP litigation as a
way to weaken or eliminate their competitors.
You’ve built your business with inspiration,
devotion and sacrifice, and ploughed a lot of
time and money into it. Why should you let
someone else steal your idea and profit from it?
Getting IP protection and making it known that
you have IP protection will deter most. Enforcing
your IP on the rare occasions it proves necessary
may save your business.
Early work to cement your IP makes absolute
sense and should be central to your overall
business strategy. Make it part of the aperitif, the
main course and dessert – don’t leave it till you
bring out the after-dinner mints.
Sebastien Aymeric is a lawyer and associate with
national Intellectual Property specialists James
& Wells, specialising in IP commercialisation
including copyright, trade marks, patents,
confidential information and contract drafting
and dispute resolution.
NOTHING
IS SIMPLE
WHEN IT
COMES
TO TRADE
MARKS
Baldwin’s head of
dispute resolution
Paul Johns says
My Food Bag is
not the 'David'
to HelloFresh's
'Goliath.'
The attention of
New Zealand media
has been caught
by the recently publicised response by My
Food Bag to allegations about its marketing
by multinational company HelloFresh.
Although My Food Bag (MFB) has not yet
published the actual claims by HelloFresh,
the issue appears to be MFB’s promotion
of its ‘Fresh Start’ product with the phrase
‘Hello, Fresh Start’.
HelloFresh has a New Zealand trade mark
registration for its logo that includes the
words HELLOFRESH. MFB is also using
a FRESH START logo that has some
resemblance to the HelloFresh registered
trade mark. MFB has in turn registered a
trade mark, although it is a little different to
the logo being used.
MFB’s widely published response suggests
HelloFresh’s complaint relates only to
the use of the word ‘hello’. It is currently
impossible to tell whether this is an
accurate summary of HelloFresh’s position,
but wider legal issues relating to trade
marks, copyright and the Fair Trading Act
may well exist. The response also implies
that MFB is surprised to have been noticed
by HelloFresh. In fact, the two companies
competed directly in Australia from 2014 to
2016.
It seems to be more common for
businesses accused of infringing intellectual
property laws to seek and rely on the
‘court of public opinion’ rather than (or
perhaps as well as) making a traditional
legal response. This is particularly the case
where the business in question can portray
themselves as a local hero ‘David’ against a
foreign ‘Goliath’.
The aim of course is to create a PR
downside that might outweigh the legal
upside to the claimant enforcing its legal
rights. HelloFresh has a business presence
Continued >>
Paul Johns
/www.foodtechnology.co.nz
