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 www.cultivate.org.au