A quick glance at Fonterra’s media site shows the dairy giant has quite a penchant for talking itself up. Last week it announced it was dropping the price of butter and cheese in line with international price decreases, but its decision to not drop the price of milk as part of a price freeze hasn’t won it any friends. Neither has news this week that it has gone after boutique cheese-makers, asking them to cease using the term “vintage” on their products, because it says it trademarked the term back in the 60s. Can you smell that? Like DB’s Radler, it’s the stench of a corporate attempting to wield its power. But will Fonterra’s case stand up in court?
You might have seen the piece on One news showing the letter Miel Meyer’s of Meyer’s Cheese received from Fonterra, asking him to stop using the term vintage—despite the fact his family has been using it on its Gouda for the past 25 years. The letter isn’t exclusive to Meyer and a number of other small cheese makers have received similar warnings.
Admittedly, small cheese-makers would be hard-pressed to generate the funds required to take on a beast like Fonterra in court, but has the dairy giant got any legs to stand on? In the Meyer Cheese case, why Fonterra has taken so long to approach the boutique cheese-maker could hinder Fonterra’s legal case, says Simon Rowell, patent attorney and partner at law-firm James & Wells
“The fact that people have been using it for 25 years will make it a real struggle for Fonterra.”
He says there are two points that could impact the decisions on whether Fonterra can retain the name. First of all, the questions need to be asked: ‘were cheese makers and the general public at the time aware of the word “vintage” as a descriptor and were they using it as a descriptor of cheese at the time?’
If the answer is no, Fonterra can argue that because no one else was using the term, it should be able to retain it as it had the term trademarked.
Fonterra is, no surprises there, remaining tight-lipped about the whole thing, releasing only this generic statement: “Fonterra Brands has had the name registered for 45 years and we are simply protecting our trademark and the value of our brands.”
Trademarks apply specifically to specific goods and services categories, which is why Apple can trademark what is otherwise a broadly used term. In New Zealand there are 45 in total (in compliance with the International Classification of Goods and Services classification system), cheese being one of them.
Recently DB snaffled the term “Radler” under its trademark wing, much to the despair of independent brewers in New Zealand. That was in spite of the fact the term is used on beer brands all over the world to describe a style of beer.