According to the evidence filed in this Australian trade mark opposition, relating to the town of Daylesford in Victoria, “a transliteration of the word ‘Daylesford’ has an auspicious Chinese meaning that evokes ideas of happiness, wealth, and good health… I know that some Chinese consumers associate the Daylesford region of Victoria and the word ‘Daylesford’ with mineral spring water and with long life and good health. Happiness, good health and a long life are all highly valued aspects of a Chinese person’s life.”
Such sentiments of happiness were not obvious in this dispute which is, in essence, a fight about geographical indicators. Various trade mark applications were filed by Australian Armaco Pty Ltd (the applicant) on 21 October 2013 for class 32 goods. The trade marks were intended for use on water products sourced from springs located in the Daylesford area of Victoria, and the applicant’s evidence indicated that the products are indeed meant for export to China. But on 12 May 2014, Daylesford and Hepburn Mineral Springs Co Pty Ltd (the opponent) opposed these applications.
The trade mark applications consisted of the Daylesford Volcanic Spring Water logos, consisting of four variations of a stylised text, all bearing a crown device and ornate frame, as well the text “Spring Hill” and “Mineral Water.”
As it turns out, by the applicant’s own concession, “there are other bottled water suppliers that use the word ‘Daylesford’ in their labelling and branding of water products including the Opponent, Daylesford and Hepburn Mineral Springs Co. Pty Ltd, and Daylesford Region Spring Water Pty Ltd of Woodend Road, Tylden, Victoria.”
For those who have never been to Daylesford, it turns out that there is some magic to the Daylesford brand. Daylesford is promoted online as being a volcanic mineral water spa attributed with healing properties. Europeans have been bathing in the waters as far back as the 1830s.
On the face of it the basis for an opposition is obvious. The water is not actually from Daylesford. It is from the Daylesford area. By analogy, Swiss chocolates should be from Switzerland, not from around Switzerland. The opponent argued that the applicant’s trade marks are likely to deceive or cause confusion because each mark implies that the goods were sourced from Daylesford, instead of from around the Daylesford area.
The applicant’s evidence noted that the applicant was not aware of any other company using the word “Daylesford” as part of a name or brand when the applicant filed the trade mark applications. The stated extent of the applicant’s knowledge at the time of the application is that the applicant’s supplier, Black Mount Spring Water, used water from the Daylesford region, particularly from sources located within a thirty kilometre radius of the Daylesford township, from other regional towns such as Musk and Millbrook.
But, in what was a tactical error, evidence filed by the opponent (rather than the applicant) demonstrated that the mineral water which is bottled by the parties and others in the Daylesford area is likely to come from a geological common source – a basalt aquifer - and is of a uniform composition.
The hearing officer considered the evidence of the various types water sources in the area, known as the Central Victorian Mineral Springs Groundwater Management Area. The evidence in this matter allowed the hearing officer to indulge in some esoteric technical jargon in his decision, such as “Ordovician sedimentary bedrock” and “shallow alluvial aquifers”.
But the crux of the decision is that the basalt aquifer lies in the Daylesford region, and so no one party can claim that the water is derived from Daylesford to the exclusion of any other party commercialising spring water in the region.
The hearing officer also noted if the Opponent’s argument was correct, then it should not have been able to register its own trade mark, which contains the words “Daylesford” and “Hepburn” without any form of restrictions stating that the water came from said basalt aquifer source underlying the Daylesford area.
(The hearing officer also dismissed an secondary argument that the applications were indistinctive: from the well-cited 1921 UK case of Diamond T, even though all the design elements outside of the ornate crown device were non-distinctive, the combination and arrangement was sufficient in rendering the trade marks, as a whole, distinctive. The trade mark applications were each for the logos in their totality, and should be examined as such.)
This decision on the source of the goods is undeniably correct: all bottled mineral waters in the area are derived from the basalt aquifer in the Daylesford region, and it is impossible to extract mineral waters from only Daylesford. This parallels the argument made by winemakers in the Champagne region that its belemnite chalk sediment (which stretches as far away undersea as the White Cliffs of Dover) is just as responsible for the qualities of Champagne wine as much as the method of manufacture: grow the vines outside the chalk traps (save for the Aube area and its clay) and you no longer produce Champagne, irrespective of whether you mirror the method. For some time now concepts from laws around geographical indicators have been extended outside of the wine sector and into other forms of produce, and this decision is a clear example of that.