On the other hand, constituting an infringing sign under section 135 requires use "on or in physical relation to goods". The sections differ in that infringement under section 89 requires "use in the course of trade" of the infringing mark. Uniquely, due to the border protection aspect of the case, the Court effectively had to consider the whether there was infringement of Weet-Bix by Weetabix under two separate sections, infringement generally under section 89, and use of an "infringing sign" in the context of the border protection regime under section 135. LBB, while acknowledging that the marks were similar and that the goods were the same, was of the view that the marks were not identical, confusion or deception was not likely, and that there was no infringement. Sanitarium argued that Weetabix was identical, or at least similar to Weet-Bix, and that use of Weetabix for cereal was likely to deceive or confuse. The import was stopped by Customs at the border and detained, giving rise to these proceedings.īoth parties agreed that the goods were breakfast cereals, falling within the scope of the Weet-Bix trade mark registration in class 30 for "preparations made from cereals including breakfast cereals". LBB sought to import British Weetabix for sale in New Zealand. The defendant, A Little Bit of Britain Limited (LBB), is a small British grocery business in New Zealand. This was the situation in this case, where the plaintiff, Australasian Conference Association Limited (which trades as Sanitarium), had filed a border protection notice for their Weet-Bix trade mark, NZ Trade Mark No. Goods bearing a potentially infringing sign are then identified by Customs Officers, who investigate and may detain the goods until the trade mark owner has an opportunity to issue proceedings in respect of the detained goods. One way of protecting a registered trade mark against the importation of infringing products is to file a border protection notice for the trade mark with the New Zealand Customs Service. Weet-Bix has been registered as a trade mark in New Zealand since 1928. Section 89 - is there trade mark infringement?.Section 135 - is Weetabix an infringing sign?.The decision also demonstrates the value of having a border protection notice registered with the New Zealand Customs Service. Whether Weetabix was an infringement of the Weet-Bix trade mark framed the issue before the High Court in the recent case of Australasian Conference Association Limited v A Little Bit of Britain Limited NZHC 2501.Īs well as relating to a popular product and garnering consequent media attention, the case also provides insight in the way New Zealand Courts will apply sections 89 and 135 of the Trade Marks Act 2002 in relation to infringement and border protection notices. On the other hand, if you are a UK expat, it may be that you are equally or more aware of "Weetabix". Whether or not you are part of the 54 per cent of New Zealand households who purchase the product "Weet-Bix", those who live in New Zealand and Australia are likely to be well aware of this antipodean 'household name' due to its longevity and sports sponsorship, among other factors.
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