New Zealand’s largest company took the case to the Intellectual Property Office, arguing Dairilife was similar to its own “Dairy for life” wording, which it uses in conjunction with the word Fonterra.
Milligans group managing director Athol Paton said he did not want to comment on the findings, except to say it was an “ongoing” matter.
He told the Intellectual Property Office his company had sold bulk goods to industrial users under the Dairilife name, and although it had not yet sold packaged goods under that name, it had made plans to do so.
On its website, Milligans says the Dairilife Range is coming “late 2017”.
Milligans began production in 1896, and boasts of being one of New Zealand’s leading suppliers and manufacture of food ingredients, consumer food and animal nutrition products.
Fonterra first registered the term Dairy for life in 2006, whereas Milligans’ first registration was in 2016.
Lawyers appearing for Fonterra told assistant commissioner of trade marks Jane Glover that use of the mark by Milligans would be likely to deceive or cause confusion, and would be likely to prejudice the interests of Fonterra.
Milligans accepted the word Dairilife looked and sounded like Dairy for life, but argued when considered as a whole, it was not confusingly similar.
The assistant commissioner however considered there was a “very high level of similarity.”
” In my view, use of the opposed marks is likely to deceive or cause confusion in light of the reputation in the Fonterra combined mark, and stylised versions of that mark. I find that the phrase “Dairy for life” is an important element of the Fonterra combined mark, even though it is not the most distinctive element of that mark.”
“Fonterra submits that the use of the opposed marks is likely to diminish the distinctiveness of Fonterra’s combined mark, and compromise the significant investment that has been made in respect of that mark. For the reasons set out above, I consider that use of the opposed marks would be likely to prejudice the interests of Fonterra,” the assistant commissioner said.
She awarded Fonterra costs of $4470.
