Can Air NZ trademark ‘Kia Ora’?
Air New Zealand has applied to trademark ‘‘Kia Ora’’ but an intellectual property specialist says it is unlikely to be approved.
The application was made in midmay.
The airline said it related to the logo design on the front of its inflight Kia Ora magazine.
Alex Sims, associate professor in Auckland University’s department of commercial law, said she doubted the application would be approved.
‘‘Because of the use of the words kia ora, even though an image is being attempted to be registered, rather than the actual words, Air New Zealand’s application needs to go through the Ma¯ ori Trade Marks Advisory Committee,’’ Sims said.
‘‘The committee provides advice to the Commissioner of Trade Marks on the registrability of trademarks.
‘‘The question is whether kia ora is offensive to Ma¯ ori.
‘‘On the one hand, it could be argued that it is not but, on the other hand, it does look as though Air New Zealand is attempting to appropriate a very common and important Ma¯ ori term, which may tip it into being offensive.’’
Sims said that if it was granted, a trademark would not give Air New Zealand a monopoly over the term.
‘‘First, the registration is for only magazines, both in hard copy and online. Second, it is for the image only and when it is being used as a trade mark.
‘‘So using the words kia ora, for example, in a story in a magazine where a character says kia ora as a
greeting to another person would not infringe.’’
Sims said even without a trademark, the airline would have protection under the Fair Trading Act and the common law concept of ‘‘passing off’’ if people were being misled into thinking they were looking at an Air New Zealand product when they were not.
Last year, My Food Bag was threatened by German-multinational corporation Hellofresh over use of the word ‘‘hello’’.
The Kiwi company received a ‘‘cease and desist’’ letter from Hellofresh, telling it to stop using ‘‘hello’’ in marketing My Food Bag’s product offer called ‘‘Fresh Start with Nadia’’ aimed at people who want to lose weight.
At the time, intellectual property lawyers said it was not possible to trademark a word that was being used as a greeting but a product such as Hello-brand pyjamas might be able to be trademarked.
If a trademark describes goods or a service, rather than signifying the brand, then it is unlikely to be allowed.
Previous attempts to trademark things such as ‘‘New Zealand water’’ have been unsuccessful because they describe a product – and could equally apply to other items.
. . . if it was granted, a trademark would not give Air New Zealand a monopoly over the term.
Alex Sims associate professor