Trade marks, brands and provenance

Which of these do you need and can you have them all?

Terminology in the legal sphere can be confusing at the best of times and some simple advice can often help you to avoid unnecessary complications. There seems to be considerable confusion about the terms ‘trademarks, brands and provenance’ in common usage.

These terms tend to get used interchangeably, when they are not always interchangeable, although they may sometimes overlap. For agricultural products, there may be times when you want to use these terms in association with your products in a way that overlaps and if it is done correctly, it can be done well and effectively.

However, some produce-based businesses, a category which many ag enterprises falls neatly into, have recently not got this right and caught the attention and faced fines from the Australian Competition and Consumer Commission (ACCC). This has resulted in businesses having to offer embarrassing corrections in the media, something to be avoided at all costs.

Cultivate Agribusiness is offering a series of articles to help your ag business navigate the legal arena and ensure you dont not find yourself in the spotlight of the ACCC for the wrong reasons, but rather only for the right ones.

This article seeks to untangle the history of the words ‘trademark’ and ‘brand’ and concepts and hopes to explain how this spills over into their modern usage. A series of follow up articles will delve in to the facts of recent cases and illustrate why the ACCC has brought businesses to task for misuse.

Also to be discussed are strategies that will help you to avoid finding your business in this same position and instead provide some tips for correct and clever usage to benefit your business!

The common link

The common link that each of the words have at their core is the concept of “origins”.

The history of each of the words and some examples

Trade marks were marks placed on goods to signify where they came from i.e. their origins – for example a sign or mark on pottery from a certain village to show and signify the type of clay used in that area and the style, know–how and expertise that had built up in that village or local area from customary usage of the type of clay available in that area and the working of it into a recognisable piece of pottery from that area.

Brands were (and still are) put on cattle and other animals to prove who they belong to (or their origins). Obviously this was of particular importance before the (relatively) modern agricultural innovation of fencing.

Provenance has a number of different meanings, but in this context, means the physical origin of the goods ie the area or locality the goods come from (their origins).

Modern day usage tied to historical usage

You can see from the history of how these terms each developed that, in the case of trade marks, the usage allows for more flexibility from the start, as the mark can become known primarily because of the quality ingredients (i.e. the clay) in the product, or because of the quality of the skill, know-how and expertise which built up in the area around the making of the goods. Or perhaps the mark is known simply as a preference for the style, fashion or customary look of the goods from the particular region.

With brands you can see from historical use that they were more about ownership than the many qualities of origin associated with a trade mark and modern day usage of brands also keeps this strong connection to ownership, although the ownership is “flipped around” whereby by the consumer decides the ownership by taking the brand upon themselves to show to the world the group that they belong to.

Provenance in association with its other main meaning and usage also tends to suggest authentication or a guarantee behind it (and hence must be taken very seriously). This is shown most clearly with the other main usage of the word provenance, in relation to the provenance of artwork or antiques for example.

Contributor Marianne Dunham, Dunham Legal

This article was published in early 2016 by Cultivate Agribusiness, the Agribusiness body for the Central Highlands area in Victoria – see


“Edge of the World”, Tarkine – Names and Branding

Yes, even here at “The Edge of the World”* there is a lesson about having a name and brand and how it defines an area, makes it more understandable, makes it memorable.

I have just visited an area that I have not been to for so long that I am not “fessin’ up” to how long ago it was, but I can say that back then there was no plaque declaring it “The Edge of the World” and if the region was called “The Tarkine”**  – well that would have been news to the locals. It is interesting to live long enough to see areas named.

The naming of it has helped define this area though and means that it is shared more than it otherwise would be.

It is all a matter of how that sharing is done, but Tas and local Govt associated with this area deserve some recognition for how they are handling it, opening it up, but preserving it too. My opinion anyway, from someone who was here before it had these names. The area is just as special as I remember it.

* It is named this after a poem, which you can see in the picture is commemorated with a cairn. The name comes also from the nature of the area -in the full blast of the Roarin 40s with sea on the horizon and no land looking west until South America (ie it is below South Africa). Also at this spot the Arthur River flows out to sea fast with a rip and the sea swirls around rocks in unusual patterns, which has a churning effect like a washing machine and large pieces of driftwood are deposited. It is a powerful place – hard to convey in a picture or in words. It feels like a rogue wave could swamp you at any time.

** The Tarkine is a new/old name. Named after one of the tribes who were in the area – Tarkiner.

January 2015

I have decided a simple blog, which I can self-publish, is the best approach to material for Dunham Legal, as the business and the personal are one and the same and this will allow for it to be more real and less spin.

I started Dunham Legal on September 1 2014 and during that time have also been consulting back to FAL Lawyers ( and, where I previously worked. The plan is to continue this.

So what is Dunham Legal and how does it fit in with working with FAL Lawyers?

The most obvious outward change is in location. I now work from the country and 1 September, right at the beginning of spring was a great time to begin doing that. I am really enjoying it. I use technology to work remotely at FAL Lawyers and whilst I know I have mentioned  this  to some, it is possible that some people I have been working with since September will be surprised to learn this. Of course I travel in to town quite regularly as required, it just is not a daily or even a frequent commute.

I still do the same stuff I have been doing since 1990, primarily technology commercialisation and intellectual property advice, along with dispute resolution and when necessary, litigation, in these same areas. I am focusing Dunham Legal on environmental technologies and agribusiness commercialisation and dispute resolution in these areas, as these are the areas which best coincide with my interests and values. With FAL Lawyers I am still doing all this same stuff with a variety of commercial clients and also with the Victorian and Federal Governments and  the research institutions that FAL Lawyers work with.  It is working for us.

When the internet was a tiny little baby in 1994, I remember seeing a website of a couple of lawyers who worked like me in the technology commercialisation space.  They quit New York and set up in Colorado (from memory they were keen hikers or skiers). I can’t even recall their names or the name of their firm, but the concept clearly stayed with me and it has taken me a little while to implement my version of it, but it feels great.