Summary of the Manuka Honey Trademark saga  
 
 
  Introduction            
  A key focus during the appeal phases of the Manuka Honey trademark legal battle has revolved around the taonga status of mānuka and the claim that that status extends to Manuka Honey.
For any claim of taonga status to be credible, each component of the term needs to be unequivocally indigenous.
In claiming distinctiveness, the term Manuka Honey has two fundamental problems when looked at through the lens of exclusive Māori provenance.
The first is that manuka is regarded as a joint native with Tasmania, referred to there as manuka for over 150 years. [Australia has more than eighty species of Leptospermum whereas NZ had predominately one.]
The second is that there is no traditional Māori honey (there were no native honeybees), unlike in Australia where the Indigenous people have been consuming honey for over 60,000 years.
The key lesson to be learned from this saga is that when seeking to safeguard indigenous intellectual property, it is essential to ensure that the subject matter is genuinely indigenous. 		 
                   
A cunning plan to Trademark a descriptive term that went awry  
  a lesson about the principle of "clean hands" in a legal argument.  
                   
  What has turned out to be the final chapter in NZ interest's attempt to secure a global monopoly for the term Manuka Honey, using Trademark law, has failed.  
  To add insult to injury for the applicants and their late-comer funders, this happened "at home".  
  Reading her decision, that took nearly 18 months to be issued, it can be seen that the Assistant Commissioner has diligently looked at every possible way to accommodate the application. She concluded that in applying NZ trademark law, based largely on International conventions, she could find no path other than to confirm the declination of the application.    
  Background            
  The saga goes back to 2015 when a membership entity, UMF Honey Association (Inc) (UMFHA) made an application for a certification trademark (CTM) for the term MANUKA HONEY.     
  One of the requirements of CTM ownership is that it is totally separate from the product for which the CTM is to apply.  This was not the case for UMFHA so a few months after the initial application was made the Manuka Honey Appellation Society (Inc) (MHAS) was formed and the application transferred.  
  In every jurisdiction around the world, the initial applications have been declined. There were appeals in NZ and the UK, at which time there was a claim that Manuka was a Māori word, never having claimed that before. 
Evidence of this not being on the minds of the applicants in 2015 is their failure to signify any Māori connection that would have precipitated referral to the Māori Advisory Committee for comment. This committee would inevitably have flagged concern. 		 
  During 2018 the applicants sought funding via the Provincial Growth Fund.  Minister Shane Jones advised that the application needed some Māori connection for that to be successful. As a result, the Manuka Charitable Trust (MCT) was formed resulting in taxpayer funding of $5.7m being made available for the CTM project as well as some scientific research.  Since then there have been complex and not fully explained financial entanglements between MCT, MHAS and UMFHA.  
  The Australian Manuka Honey Association has been the main opponent to the application and has been successful in appealing the final determinations by the respective Trademark Offices in the UK and NZ.  In both cases the applicant has decided not to appeal these decisions to the High Court in each country.    
  Key provisions of Trademark Law          
  In New Zealand, similar to many other jurisdictions, a trademark that is purely descriptive of the goods or services it represents is not generally registrable.  
  The NZ interests claimed that Manuka Honey was unique to NZ and this therefore allowed some flexibility in relation to a certification trademark containing a descriptive term. It is important to note that the applications were declined in all of the jurisdictions in which they were filed, including NZ, the UK, the EU, the USA and China, to name but a few.  
  The key facts            
  The scientific name of NZ's only common manuka species is Leptospermum scoparium (Ls). There are over 80 species in Australia.   
  The word manuka, albeit likely to have been borrowed from the Māori language, has been in the Australian language for over 150 years and has been used separately from tea-tree or jelly-bush;  
  The authoritative Oxford English Dictionary (OED) describes manuka as a native of NZ and Tasmania although it is generally believed to have come to NZ from Australia more than 2 million years ago.   
  NZ had no native honeybees so honey from any source has only been produced in NZ since the late 19th century by imported European bees, whereas the Australian indigenous people have been consuming manuka honey (albeit not by that name throughout) for more than 60,000 years, from their native stingless bees.  
  The Māori characterisation of manuka is mānuka or maanuka.  In 2017, the Māori Language Commission made a submission to the parliamentary select committee's Inquiry into Honey in which it stated that manuka has no meaning in Māori. It went on to explain that the correct versions were  mānuka or maanuka.     
  On the Māori theme relating to the manuka plant, it has been claimed as a taonga (ie a treasured possession in Māori culture). Māori culture clearly implied long standing.   
  In the context of the CTM arguments, the characterisation has been expanded to manuka honey also being regarded as a taonga.   This stretches credibility because the word used in Māori for honey is "miēre" which actually means syrup or golden syrup.  
  If one considers parallels, it becomes evident that two of New Zealand's notable tree species, Kauri and Rimu, hold immense significance as taonga. However, if these species were granted taonga status worldwide, the cultural implications for Kauri and Rimu furniture would be beyond imagination. Unsurprisingly, this contention has never been contemplated.  
  The first labelled Manuka Honey sold was at a Farmers' Market in Tasmania in 1984.  
  The Chronology of Manuka in Australia  
                   
  1882 Tasmanian government House of Assembly report describes Manuka trees, first recorded evidence of the name Manuka being used to describe Leptospermum plants.  
  1884 Tasmanian maps refer to regions of “low Manuka and Tea Tree scrub”. The Launceston Examiner includes articles in 1884 and 1885 describing the Tasmanian landscape of ‘Manuka’ plants.  
  1897 Sheffield Honey Farm is established, as one of Tasmania’s oldest working apiaries, producing Manuka honey.  
  1913 Australia’s capital, Canberra, was founded in 1913 and it has an original suburb named Manuka after the plant native to Australia and New Zealand (NZ). Within this suburb, Manuka Oval has a rich and diverse history starting back as early as the 1920’s. In 1962, the Bradman pavilion was constructed at Manuka oval and named in honour of the great cricketer, Don Bradman, who first played at Manuka oval against Mailers ‘Bohemians’.  
  1920 Generations of children have used Manuka bushes to build cubby houses in the remote region of Blue Hills in Tasmania. In fact, there is a government managed campground in Tasmania operated by Parks and Wildlife Tasmania known as the ‘Manuka Campground’, in addition to roads named after the Manuka tree, such as Manuka Drive in Smithton, Tasmania.  
  1922 Publication by F R Beuhne called ‘Honey Flora of Victoria’ refers to Leptospermum as Manuka.  
  1924 Business allotments for Manuka, an area in the Inner South District of Canberra, were included in the first auction of city leases  
  1935 In 1935 and 1937, The Adelaide Chronicle newspaper is a rural interest column refers to the extraction of ‘Manuka honey’ and ‘tainted in flavour…honey from Manuka’.  
  1938 South Australian Border Chronicle reports on development in bee-farming and Manuka honey production.  
  1947 The Mercury magazine in Tasmania describes Manuka scrub.  
  1976 Even though the name was gazetted on the 10 March 1976, the Tasmanian Nomenclature Board was established in 1953 as a statutory body to assign the names of places in Tasmania, which included naming the Manuka Creek. Background notes state: Manuka as being a “word for a small tree with aromatic leaves which are sometimes used for tea, native to New Zealand and Tasmania. Leptospermum scoparium, family Myrtaceae.” Articles from 1888 to 1900 from Australian newspapers refer to ‘Manuka Creek’ or ‘Manuka Rivulet’ in Tasmania.  
  1980 Publication of Forestry Commission of New South Wales (NSW) of ‘Trees and shrubs of Eastern Australia’ refers to the common name of “Manuka Tea Tree” for Leptospermum.  
  1985 Publication by New South Wales Department of Agriculture on ‘Honey and Pollen Flora’ by Alan Clemson records that Manuka is the common name for Leptospermum.  
  1994 Byron Bay beekeeper, Michael Howes, begins research into apitherapy products as a beekeeper with hives located on Manuka honey native environments.  
  1995 In June 1995, Capilano Honey as Australia’s largest honey packer, began researching the therapeutic and wound healing properties of honey, including that originating from the Leptospermum species and the Manuka honey this plant produces.  
  1996 Capilano Honey registered the MEDIHONEY trade mark in the class of medicinal, pharmaceutical and therapeutic as we began to progress plan to commercialise Manuka honeys.  
  1997 Dr Peter Molan, one of the key NZ scientists responsible for identifying the unique properties of Manuka honey, visited Capilano’s Australian office.  
  1998 In a large survey of New Zealand honeys, Molan and Russell (1988) found a correlation between high levels of antibacterial activity and non-peroxide content. Allen et al. (1991) suggested that the variation in activity might be attributable to the Manuka floral source. Honey from Manuka demonstrated high antibacterial activity, and this was shown to be due to a non-peroxide component.  
  1998 Capilano’s Medihoney brand finalises the formula of a range of therapeutic medical honey products, using Australian Manuka honey as the key active ingredient, with Medihoney products listed with the TGA in 1999.  
  2000 An article published in the UK by the Nursing Times, and was written by NZ authors, stating: “Various brands of honey with standardised levels of antibacterial are commercially available from manufacturers in New Zealand and Australia. They are all Leptospermum honey, commonly known as Manuka honey, which has an unusually high level of plant-derived non-peroxide antibacterial activity.”  
  2002 Capilano introduced Australian Manuka Clear Honey into the UK supermarket for Sainsbury’s Private Label range. Capilano sold jars of Sainsbury’s ‘Taste the Difference Clear Manuka Honey’ from June 2002 to March 2006.  
  2003 Capilano and Medihoney promote Manuka honey in the UK at the BBC Trade Show from 2001 – 2003.  
  2004 Medihoney published the findings of its first clinical study, and Medihoney (Europe) Ltd was established as Active+ Manuka honey exports to Europe expanded. Australian active Manuka products were being sold in the UK through Holland & Barrett, Sainsbury and Tesco pharmacies and even listed as part of the UK Drug Tariff.  
  2005 Hive + Wellnesses’ BeeVital Brand championed the sale of Australian Manuka honey products in local grocery channels. Since the early 2000’s, the Capilano brand has also sold various Manuka honey products.  
  2007 Capilano sold Medihoney Pty Ltd to Comvita Limited (New Zealand) and Comvita Holdings Pty Ltd so those companies could invest further in the marketing and supply of Australian Manuka honey products.  
  2010 Australian Government commissioned a project to investigate existing and prospective honey markets, referring to Manuka throughout the report.  
  2015 [August 18th, the priority date for the (now abandoned) MANUKA HONEY certification trademark application filed in New Zealand.]  
  2016 ABC TV show Landline does a special report on Australian Manuka honey production.  
  2016 Food Standards Agency (FSA) (UK) undertook a study to understand consumer perceptions of honey, in the findings the FSA described Manuka honey to study participant as ‘a honey sourced mainly from Australia or New Zealand. Manuka honey differs from other honey as it is made only from the nectar of the Manuka tree…’  
  2017 Comvita (NZ) AGM Investor Presentation 2017, referring to Australian Manuka honey as part of their investment in Medibee Australia.  
  A point to ponder in relation to indigenous IP  
  If the Manuka Honey argument was truly principled and not about the money, as has been an accusation against the Australians, those behind the Manuka Charitable Trust would have by now registered a Māori IP Charitable Trust and be taking measures to protect taonga such as Kānuka, Rewarewa, Rata and other sources of products such as honey and/or oils with healing benefits.
As of today (10/07/23), there are no trademark applications for any of these Māori taonga nor domain name registrations.  In fact rewarewahoney.com was successfully registered just three days ago, not by any Maori trust!
Take from these observations what you may. 
Disingenuous, hypocritical, unprincipled are three of the more polite characterisations that spring to mind relating to the narrative purporting to be on behalf of Māoridom.
While it was stated ad nauseum that the Manuka Honey application was potentially for the benefit of Māori and all New Zealanders, how that was to be achieved was never articulated, in spite of frequent requests. 
The notion of any potential benefit was effectively decapitated in early 2018 when the applicant, in a desperate attempt to win its appeal against the initial declination, agreed that there would be no cost for the use of the term by NZ entities.  It appears that overseas ownership of such entities was no barrier to free access to the term!