Heightened competition in the agribusiness sector means the
issue of branding has become increasingly important for primary
producers and marketers. Branding is key in competitive trade as it
differentiates products from others in the market, helping to
maintain the long-term sustainability of a business.
Branding is particularly important in the agribusiness sector
because products are often heavily commoditised, which makes like
products indistinguishable. Products can be effectively
differentiated from similar products through brand association and
trade mark registration.
Senior associate Hayden Delaney and law clerk Chloe Richardson
explain the tools available to protect products in the agribusiness
sector, and outline two recent court cases that show how
proactively taking legal steps to protect your brands can pay off
in the long run.
Registering trade marks allow businesses to develop a brand
while ensuring that the brand remains protected in the process. By
registering the brand as a trade mark, the business is able to
protect it from exploitation.
A trade mark is a sign used to distinguish goods or services
dealt with or provided in the course of trade by a person or a
business from goods or services so dealt with or provided by any
other person or business.
Two recent court cases demonstrate how branding can alter the
perception of ordinary commoditised products in the minds of
consumers, and how trade marks play a important role in protecting
Case studies: Branding in the agribusiness sector
In a recent case, a company called Seven Fields commenced
Federal Court proceedings to protect its Sweet Cheeks mango brand.
It argued that another company was using a mango carton that was
deceptively similar to the carton that it used to market the Sweet
Cheeks brand. In particular, the offending company's carton
used the same design, colour scheme and type face.
The matter was settled before trial, with the offending company
agreeing to pay costs to Seven Fields and to immediately stop using
the existing packaging for the mango cartons.
In another recent case, a company known as Pacific Coast Eco
Bananas commenced Federal Court proceedings against an offending
supplier that sold purple wax tipped bananas. Pacific Coast has ten
registered trade marks, four of which relate to wax tipped bananas.
The offending supplier was restrained from selling or supplying wax
tipped bananas and ordered to pay almost $50,000 in damages.
This decision affirms Pacific Coast's effective monopoly
over all colours of opaque coatings applied to bananas, despite the
fact that they primarily sell red wax tipped bananas. The trade
mark portfolio of Pacific Coast has become immensely valuable to
the business, and is a legally-enforceable point of difference.
Why trade marks are essential for agribusiness products
Practically speaking, trade marks help consumers differentiate
competing goods and services from each other. The essential purpose
of a trade mark is to serve as a 'badge of origin',
indicating a connection between the goods or services and the
A trade mark may consist of a number of branding tools such as a
word, logo, name, picture, shape, colour, sound and scent. In the
agribusiness sector, a common point of differentiation often comes
in the form of a colour, and colours are, in certain circumstances,
capable of being registered as a trade mark. This can encompass the
packaging in which the goods are sold, or the colour of the goods
themselves. An agribusiness may also wish to establish a brand by
associating their business with a particular colour used in their
In addition, the registration of a trade mark offers a wide
protection for the brand associated with the trade mark. The
registration of a trade mark prevents any other person from using a
sign that is substantially identical with or deceptively similar to
the trade mark, if the goods or services are the same or similar as
those for which the trade mark is registered. This ensures that the
value of the brand and its point of difference are preserved.
As a licensor or a licensee, here are some tips you should consider when negotiating your next licence agreement.
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