Trademarks & Certification Marks

Definition: Any sign that can be graphically represented and distinguishes goods/services.
Legislation: Trademarks Act 2002.
Requirements: Distinctiveness, not falling under grounds for non-registration (e.g., section 17, reflecting the Treaty of Waitangi principle through the Maori advisory panel).
Process:
- Application (details of mark, classification of goods/services).
- Examination (by examiner for completeness and registrability).
- Advertisement (for public opposition).
- Opposition process (IPONZ acts as a special tribunal with quasi-judicial powers; decisions are subject to judicial review).

Definition: Marks used to certify specific characteristics of products or services (e.g., Fair Trade).
Purpose: To inform consumers about standards met in production (social, environmental, economic).

Verifies products are produced according to specific social, environmental, and economic standards.
Ensures producers receive fair prices, premiums on sales, improved working conditions, and access to resources.

Governed by Trademarks Act 2002 (section 5).
Certification Trademark Definition: A sign capable of being graphically represented, distinguishing certified goods/services from uncertified ones.
- For goods: Certifies origin, material, mode of manufacture, quality, accuracy, or other characteristics.
- For services: Certifies quality, accuracy, performance, or other characteristics.

Feature	Standard Trademark	Certification Mark
Purpose	Identify source of goods/services	Indicate goods/services meet specific standards/quality
Ownership	Business promoting goods/services	Government agencies or independent organizations
Usage Control	Exclusively by owner or with permission	Multiple organizations meeting standards
Registration	Under Trademarks Act 2002	Under Trademarks Act 2002, but with specific requirements
Regulation	Owner enforces usage/prevents infringement	Certification body regulates use/ensures compliance
Consumer Perception	Indicates specific brand/reputation	Assures quality, safety, or other certified features
Typical Users	Businesses competing in the market	Independent organizations (e.g., quality assurance bodies)

Section 66 of Trademark Act.
Applicant must provide draft regulations governing the use of the certification trademark for approval.
Commissioner/court must assess:
- Whether the mark indicates it is a certification trademark.
- Applicant's competence to certify.
- Whether the draft regulations are satisfactory.
- Whether registration is in the public interest.
Application process mirrors that of standard trademarks (application, examination, advertisement, opposition).

Opposition stage: Australian manufacturers opposing a certification trademark application by New Zealand Manuka honey manufacturers.

Manuka Honey Appellation Society Incorporated (MHAS):
- Association of Manuka honey manufacturers in New Zealand.
- Purpose: To protect the term "Manuka Honey" and certify/protect the trademark.
- Trademark: Manuka Honey (without macaron).
Australian Manuka Honey Association:
- Made up of manufacturers based in Australia
- Purpose: To protect and promote the global appeal and awareness of manuka honey produced in Australia.

Manuka honey: Produced in New Zealand and Australia from Leptospermum scoparium.
Manuka: A Te Reo Māori word with traditional medicinal and therapeutic significance.
Identified as a taonga species in the Y262 report.

IPONZ relies on LS v R (Supreme Court ruling) for clarification on Tikanga in common and statute law.
LS v R identifies Trademarks Act 2002 as a statute incorporating Tikanga principles.

Addresses Māori concerns relating to trademarks containing Māori signs.
Section 17(1)(c): Prohibits registration if use/reputation would offend a significant section of the community, including Māori.
Section 178: Function of the advisory committee to advise on potentially offensive use or registration of trademarks derived from Māori signs.
Section 179: Requires advisory committee members to have knowledge of Te Reo Māori and Tikanga Māori.
The act defines the statutory definition of tikanga Maori in the trademark as Maori protocol and culture.

Are Tikanga principles relevant to determining whether the mark should be registered?
If so, which aspects are relevant, and in what manner/to what extent?
If relevant, how should Tikanga be ascertained and taken into account for this opposition proceeding?