Kumudu Ramasundara, the acting
general manager of the trademarks
and design group at IP Australia, says
that while the trademarks registrar
has the power to approve or deny
trademarks, control of the use of
these trademarks falls with someone
else – in the case of food products,
Food Standards Australia NewZealand (FSANZ), which is enforced
by individual state authorities.
FSANZ is in the process of drafting
the Standard for Nutrition, Health
and Related Claims. The draft
standard aims to ensure there
is adequate scientific evidence
for new health claims.
Under the current transitional
standard, a package must not
include the word “health” or
any derivatives of this word in
conjunction with the name of the
food. But it is likely a product such
as Uncle Toby’s HealthWise cereal,
which has added sugar, can dodge
this requirement by including the
word in a trademark. The transitional
standard fails to define just how
closely linked words must be to
Products such as preserved
olives sold under the Always Fresh
trademark or the mix of fresh and
reconstituted local and imported
orange juice sold under The Daily
Juice Company banner, will not be
covered by the new standard.
Federal trademark law trumps
the application of food standards,
which is carried out by individual
state food authorities. Food labelling
law expert Chris Preston says it
is likely provisions in the current
standard that rule against such
trademarks are inconsistent with
the trademark law, potentially
making for “tremendous confusion”,
especially when it comes to the
words he describes as the unholy
trinity – pure, fresh and natural.
“There is a sense that trademarks
enjoy a special privileged status,
and although this argument has
its merits, we don’t know because
there is no case law around this
area,” Preston says. Despite this,
he argues it wouldn’t be smart for
new companies to embark on a
marketing strategy that relies
on a trademark that can’t be
substantiated, because there are
still avenues to pursue misleading
conduct through the Australian Consumer Law.
The CHOICE verdict
It is important to remember that just because the brand name of a product suggests that it’s healthy or natural doesn’t mean it always is. Supermarket sections and, sometimes, entire aisles are dedicated to products promoted as “healthy”.
Coles and Woolworths have dedicated health food aisles in store and online, and while these aisles contain some healthy foods, such as nuts and dried fruits, they also have products that should be treated as more of an indulgence than a health food.
CHOICE is part of a government-led process to develop a front-of-pack labelling system that would help consumers know at a glance whether or not a product is healthy, cutting through these claims.