NEWS

Trade Mark and Variety – An important distinction

BRAND VERSUS VARIETY

PINK LADY should consistently be referred to as a trade mark or brand and not as an apple variety.

WHY? A trade mark is a proper adjective, rather than a noun or a verb. The purpose of a trade mark is to reference the source of a product (eg from the leading and reputable PINK LADY brand) but not to identify the generic product (eg, apples).

A generic word cannot be registered as a trade mark. It can also lead to a trade mark losing its legal status. For example, the asprin has been declared a generic term in the United States and the escalator was originally a trademark of Otis Elevator Company before it became a common term.

Accordingly, the PINK LADY trade mark should not be used in a way that causes it to become descriptive of apples. In particular, it is important to avoid the brand becoming synonymous with pink apples or to associate the brand with the colour pink. This could also lead to the claim that the brand has become a generic term for pink apples.

  • Don’t refer to PINK LADY apples or JOYA apples as stand-alone terms.
  • Don’t refer to a PINK LADY variety or JOYA variety.
  • Don’t use the descriptive word PINK to describe the apple or variety.
  • DO refer to a PINK LADY branded apple or a JOYA branded apple.
  • DO refer to the Cripps Pink, Rosy Glow, Lady in Red/Sekzie varieties.
  • DO refer to the Cripps Red variety.

 

USE OF THE ® SYMBOL

Only registered trade marks carry the ® symbol. This symbol is used to alert competitors that the trade mark is protected. It also enables consumers to make an informed choice about the quality of the product they are purchasing.

Business names and correspondence: Only use the ® symbol when PINK LADY is being used as a trade mark. For example, there is no need to include the symbol on letterhead or in a business name.

Advertisements and press releases: Depending on the form of the advertisement, there is no issue with using the ® symbol every time a reference is made to PINK LADY. At a minimum, it should occur at least once, either the first time the trade mark appears or with the most prominent use of the trade mark.

It is better to refer to the trade mark PINK LADY in a different font, italics, or in capital letters. This emphasises that the term is a trade mark and not simply another word in the text. The specific way of referring to the trade mark should be consistent throughout the text.

In any marketing or promotional materials, an attribution statement should be used as follows: The PINK LADY trade marks are registered by Apple and Pear Australia Limited (APAL) in more than 90 territories worldwide and reserved for the exclusive use of licensees.  The attribution statement may be incorporated at the end of an advertisement or on the back of packaging.

 

 

 

Amy Larking

About the Author:

Legal Counsel, Apple and Pear Australia Limited

alarking@apal.org.au