Is your labelling misleading? Avoiding regulatory challenges beyond Intellectual Property protection

By Adam Luxton

By Adam Luxton

When creating a new visual identity for your product or company, seeking intellectual property protection through applying for trade marks or registered designs can play a vital role in preventing future legal problems. Performing the right searches, making a robust application, having it examined and maintaining your resultant IP rights can help to protect your new logos, labels and designs from imitation. The process can also help you to identify whether your new design or logo is too close to that of an existing competitor and whether it would be better to modify your look and feel.

However, the risk of future legal challenges on the basis of copying or passing off is not the only question to consider when creating a new visual identity. A recent investigation by the Australian Competition and Consumer Commission has highlighted the importance of also avoiding your logo, design and labelling misleading consumers.

The investigation related to a range of products under the Maggie Beer brand, including ice cream, vinegar, olive oil and biscuits. While the company is based at a farm in South Australia, the products listed above are manufactured by third parties in Victoria and Queensland. However, on the products’ labelling, the company’s South Australian address only was prominently displayed, alongside a notice that the product was ‘Made In Australia’. The company’s logo, displayed nearby on the products, also includes a legend that reads ‘Maggie Beer: A Barossa Food Tradition’.

The ACCC considered these elements of the products’ visual identities would lead consumers to believe that the products were manufactured in South Australia. Given that consumers are sometimes willing to pay more for products manufactured locally, and that the Barossa Valley in South Australia is considered a location which produces premium food and drink, this incorrect belief about the products’ origins could have an impact on their commercial success.

Maggie Beer Products co-operated with the investigation and has made a court-enforceable undertaking to change their labelling and to publish an article on the subject in a national food magazine. This process is likely to involve additional manufacturing costs in the short term, as well as potentially damaging the company’s reputation as a local farm based brand led by a high-profile cook.

Although Fisher Adams Kelly does not directly provide advice on these issues, we work with a wide range of trusted local and international law firms who can. We work with lawyers with experience in all industry sectors and jurisdictions and can recommend the best practitioner for your needs. If you are considering intellectual property protection for your logo, product design or visual identity, or you would like advice as to whether these aspects of your product are likely to mislead consumers please contact us on +61 7 3229 2655 or mail@fak.com.au