Abstract:
This expert opinion was filed with the High Court of New Zealand in support of the defendant in a trademark dispute. The evidence presented was contrasted with that of another academic witness. Based, in part, on the strength of this evidence, the plaintiff withdrew its court case, and costs were awarded to the defendant. The brief for this engagement was to develop a written expert opinion on the following matters: a) An overview of the generally accepted meaning of the term “brand,” and how brand names differ from generic descriptors; b) Whether the “100% natural sweetener” claim or descriptor is capable of being distinctive and thereby functioning as an indicator of the trade source of the product; c) Whether, based on the evidence, the claim or descriptor is in fact operating as an indication of the trade source of the goods; d) How the average consumer is likely to perceive this claim or descriptor on packaging; e) Whether the NATURALS stick box packaging released in 2016 is confusingly similar to the NATVIA stick box packaging and if not, why not; f) Whether the other more recent NATURALS packaging formats are confusingly similar to the equivalent NATVIA packaging and if not, why not; g) The importance of colours in consumer perception of brands and purchasing behaviour, and an application of this research to the relevant packages and branding; h) The usual steps taken by companies in the FMCG industry when designing and releasing new products or branding, including the approach taken to tracking and assessing competitor products; i) Consider how a range of different package variants affects the way products are presented (at retail and in other circumstances) and how this impacts on the average consumer’s perception of the product; and j) Any other matters relevant to the question of whether the NATURALS stick box and other NATURALS packaging is confusingly similar to the NATVIA packaging.
