Updated: Thursday, 13 July 2023      
  "Australia's recognition of the existence of Manuka Honey is not recent (as claimed by NZ interests). The very first reference in Australia was in the Adelaide Chronicle on the 2nd of July 1927."  
  A quick summary of the Manuka Honey trademark saga      
  Background  
    NZ interests have applications in multiple jurisdictions to be granted exclusive rights to the term "MANUKA HONEY" as a certification trade mark ("CTM").

The Australian Manuka Honey Association is opposing these applications on the basis, among other things, that: (i) the word manuka has been in the Australian lexicon for nearly 150 years; (ii) the first recorded use of the term "manuka honey" was in Australia in 1927; (iii) the first labelled Manuka Honey was sold at a Farmers' Market in Tasmania in 1984; (iv) the manuka plant is scientifically a native of Australia; and (v) in the "modern" context (ie the last 2 million years), the Oxford English Dictionary ("OED") defines manuka as a native of NZ and Tasmania.  		 
  Contents        
    The Parties        
    The Manuka Honey story - the facts.        
    The certification trade mark ("CTM")        
    History of "manuka" in the Australian lexicon      
    The 'money-go-round' (re $5.7m of taxpayer funding)      
    The latest challenge - NZ EU FTA      
     2023 Update      
     Updates      
               
  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! 		 
 
     
UMF Honey Association (Inc) - "UMFHA"                  
1.1 UMFHA was the original applicant for the MANUKA HONEY Certification Trade Mark ("CTM") in August 2015. This was subsequently transferred to the newly incorporated Manuka Honey Appellation Society (Inc) ("MHAS") in May 2016 when it was realised UMFHA was statute barred from owning a CTM.

 
1.2 UMFHA's Rules states that its primary purpose is "To effectively and efficiently manage the protection and use of the UMF® trade mark and other trade marks owned by UMFHA ("the UMF family of trade marks") in New Zealand and overseas."
Note: UMFHA's only registered trade marks involve "UMF" and "Unique Manuka Factor" (no macron on the "a" in spite of the characterisation on its website).

 
   
1.3 UMFHA has been the major funder of the CTM application, having advanced MHAS $606,672 to 31 March 2022 with a further $205,000 in April. A note to the accounts states that the debt will be paid from the commercialisation by MHAS of its CTM. The fundamental issue with this debt is that MHAS has no authority in its Rules to borrow, rendering the $812k owing to UMFHA uncollectible. (The note states that further "short term" advances are to be made.)

  
1.4 Another unexplained (inexplicable) item in the Statement of Financial Performance is a Grant/Donation to Te Pita Ltd/Manuka Charitable Trust in the sum of $330,000. [While it is doubtful that the society has the powers to give away money, UMFHA had a crisis meeting of members about its finances in February proposing greatly increased membership and licencing fees. There is no report of any follow-up meeting.]

 
Manuka Honey Appellation Society (Inc) - "MHAS"  
2.1 MHAS was incorporated in April 2016 with a single Object: "… to act as guardian for the term MANUKA HONEY and to protect and preserve it as the name for genuine honey produced in New Zealand that comprises or contains authentic Manuka honey."   
   
2.2 While there are no benefits of being a member of MHAS, on incorporation, the membership largely mirrored that of UMFHA. [Note: membership cannot be a condition of being able to use a Certification Trademark.]  The society has never set a membership fee so effectively has no visible means of financial support. It wasn't until the financial year ending 31 March, 2021 that it opened a bank account.

 		 
2.3 In spite of its very limited Objects, seemingly giving it only two revenue options: (i) membership fees; and (ii) (theoretically) "licensing revenue" in the event of the trade mark endeavours being successful, the 2021 comparative figures in the 2022 year end financials (there has been no 2021 annual  report  filed) show $1,021,285 of "Other Revenue" received in the 2020/2021 financial year.

The other change from 2020 was that Intangible Assets of $780,466 and a creditor sum (known to be to Buddle Findlay) of $662,051 have simply disappeared. [A Rawcliffe Affidavit stated that this sum had been paid without disclosing by whom or on what basis.]

The 2022 revenue figures show sums received of $250k and $100k from Comvita and Manuka Health respectively. [Note: there is no ability in the Rules to offer these members any special terms.]

 		 
2.4 As part of it CTM application, MHAS has had to submit Regulations relating to the certification criteria, a fundamental imperative of which is the independence of the certifier.  The Regulations submitted for the NZ application state that UMFHA will be the contracted certifier.

There are multiple issues with this.
(a) UMFHA is not independent because (i) it is owed a substantial sum by MHAS; (ii) its UMF rating is going to be on the labels of a significant volume of product it is certifying; (iii) those using the UMF rating system have to be members of UMFHA hence collectively control the society.

  
             
Manuka Charitable Trust/Te Pitau Ltd - "MCTTP"  
When MHAS was preparing its appeals of the declinations in the UK and NZ, someone came up with the notion of arguing that Manuka is a Māori word, thereby giving it its required distinctiveness. It is known that this argument was an afterthought because no mention was made on the original application which would have required the application to get sign-off from the IPONZ Māori Committee.

With this "Māori name guardianship" kaupapa firmly embraced and a Minister of Regional Development with a billion dollars to give away, an application was made to fund the CTM endeavours around the world.  A sum of around $5.5m was agreed in principle, split between IP pursuits and R & D. However in undertaking its due diligence, the crown saw some red flags.

As a result MCTTP was formed in early 2020 to take over the funding application.  The narrative is that this action is for the benefit of all Māori but there has never been any explanation of this.

The notion was effectively sabotaged by MHAS in 2018 when it gave IPONZ an undertaking that no NZ business would have to pay for the use of the term manuka honey.

While it is possible to speculate that there have been some undisclosed financial interactions, neither of the MCTTP entities has filed any financial report as yet.

  
INTER-PARTY RELATIONSHIPS  
For the appeals in relation to MHAS's CTM applications to continue, they cannot be assigned to another party without having to commence the process from scratch.

Given that on paper, MHAS is hopelessly insolvent and as stated previously, has no visible means of financially sustaining itself, its continued ability to exist is nothing short of a mystery.

It is known that there is an "Option Agreement" with MCT group whereby MHAS, at its sole discretion, can require MCT to purchase (a) registered CTM(s) in one or more jurisdiction for an undisclosed sum. In light of the lack for transparency in relation to the money-go-round, the technical veracity of this agreement has to be questioned.  		 
The Manuka Story
the NZ perspective versus the facts 		 
 
 COUNTER NARRATIVE (all verifiable)  
A That manuka is a native of NZ.     1. The authoritative Oxford English Dictionary credits manuka as a native of both Tasmania and New Zealand.  
                2. Scientific literature confirms that manuka originated from Australia, arriving in NZ between 2.45 million and 60 million years ago. It is interesting that it was only one of over 80 other species that "caught the wind".

  
B That manuka is a Māori word.      In its submission to the Inquiry into Honey dated 2017, the Māori Language Commission stated that the word "manuka" has no meaning in Māori and that the Māori version of the word is mānuka (alternatively maanuka).  
                     
C That until its honey became valuable, manuka was called Tea tree or Jelly bush in Australia.

   1. The plant name manuka has been used in Australia for nearly 150 years.  
    2. A 1884 Tasmanian map shows an area labelled "Lower tea tree and manuka scrub", confirming the names are not synonymous.

  
D Mānuka or maanuka are the Māori versions of the word manuka.

   1. Australian manuka honey interests totally support NZ having exclusive use of the Māori versions of manuka, ie mānuka or maanuka.

  
E NZ was the first to sell manuka honey after the Peter Molan report into its medicinal properties was published around 1990.

   1. The first labelled Manuka honey was sold in a Farmers' market in Tasmania in 1984.  
    2. The first recorded reference anywhere of the term manuka honey appeared in the Adelaide Chronicle on 2 July,1927.

  
F That manuka honey from Australia would cause reputational damage to the NZ product because it is likely to be inferior.
1. One of the unique features of Manuka honey is that every jar/receptacle has an active ingredient rating (the basis of its health and well-being benefits), including MGO, UMF or MGS.
    2. The Australian manuka honey interests have undertaken to never use the term without a geographical descriptor, eg Tasmanian, Australian, etc. That ensures that there is no confusion as to country of origin.  
    3. Hot climatic conditions produce manuka honey with exceptionally high active ingredient scores.  Those conditions occur in certain parts of Australia.

  
G There have been claims manuka honey was used in traditional Māori healing.

  1. NZ has no native honeybees. The first European honeybees were imported in 1839 and while it was not until 1878 that any commercial bee-keeping took place, it is highly unlikely that the hives were anywhere near manuka. The strong flavour and dark colour would have been an unpalatable contrast to honey from other sources such as clover and other native trees.  
    2. Australia had its own native honeybees so while not referred to as manuka honey until the late 1800s, it has been in existence in blended (by the bees) form for millennia, undoubtedly delivering health benefits to those who consumed it.

 		 
H In filings supporting their CTM declination appeals, NZ interests claim that there is no such thing as "manuka honey" from Australia.

   1. There are emails from 2012-13 where John Rawcliffe from UMF Honey Association was offering partnership opportunities to Australian manuka honey interests. Tony Wright, employed by Comvita Ltd, was making inquiries about sourcing manuka honey supplies in Australia during this same period.
Comvita entered into a joint venture arrangement with Capilano in Australia in a Manuka plantation which remains active today.
It is notable that Rawcliffe and Wright are the only two officers listed for the Manuka Honey Appellation Society (Inc), currently arguing for exclusive rights by way of a certification trade mark to the term manuka honey for NZ based producers, arguing that Australian Manuka Honey is not genuine!

  
Extracted references from the witness statement of Lawrence Michael Howes of Byron Bay Australia filed 15 July 2019.  
  In support of the Australian Manuka Honey Association ("AMHA") opposition to the application by the Manuka Honey Appellation Society ("MHAS") for the registration of MANUKA HONEY as a certification trade mark in the United Kingdom.  
         
 
 
  The term 'manuka honey’ is widely used to describe monofloral manuka honey produced from the nectar of Leptospermum scoparium.  Numerous references are listed below:  
  The term 'manuka honey’ is widely used to describe monofloral manuka honey produced from the nectar of Leptospermum scoparium.  
  The International Union for the Protection of New Varieties of Plants in its global GENIE database lists “manuka; tea tree” as the common English names for Leptospermum scoparium and plant varieties based on that species.  
     
  The manuka plant (Leptospermum scoparium) is endemic to Australia and New Zealand, and generally acknowledged as such. There are numerous references to this listed below, some with links to sources:  
   *   A book titled Nectar and Pollen Sources of New Zealand, published in 1967 by R S Walsh acknowledges that manuka belongs to both Australia and New Zealand.  
     
   *   An article from the New Zealand Garden Journal (2008, Vol 11(2)) which also acknowledges manuka’s Australian origin.   
     
   *   NSW Flora Online confirms the existence of L scoparium in Australia.  
     
   *   The word “manuka”, albeit originally from the Māori language, has become part of the English language with its appearance in the second edition of the Oxford English Dictionary ("OED”) published in 1989.   
   *   In the most current online edition of the OED “manuka” is defined as: “a small tree with aromatic leaves which are sometimes used for tea, native to New Zealand and Tasmania (Leptospermum scoparium, family Myrtacae)." with acknowledgement of its Māori origins.   
   *   The word “manuka" has been used to describe the Leptospermum scoparium plant growing outside of New Zealand for more than 130 years. Examples are listed below:   
      •   In a letter dated 27 July 1882 from J C Climie published in a report of the Tasmanian House of Assembly: “There is no stone or other material suitable for ballast on this portion of the line, neither is there any timber of value for railway purposes: throughout there is ti-tree, manuka, wirewood scrub, and small gums. The land is of little value, excepting the manuka flats, which may be of value if drained.”  
       
      •   In an article dated 3 May 1884 from The Launceston Examiner: “...A digger’s track, barely discernible, now lost in huge tussocks of razor grass, thence emerging by S hook, turns into banera jungle, alternating with peppermint laurel or Waratah scrub, and gain in the forest of big stringy gum, myrtle or manuka.”  
      •   In an article from The Launceston Examiner dated 20 July 1885 which contains the sentence, “A thick growth of manuka and teatree covers the north side of the island.”  
      •   In multiple articles from 1888 to 1900 in Australian newspapers referring to “Manuka Creek” or ‘Manuka Rivulet” in Tasmania. The creek still has this name.  
      •   In an article from The Tasmanian dated 25 May 1989, the phrase: “manuka and teatree swamps.”  
      •   In an article in the Zeehan and Dundas Herald dated 5 February 1892: “The timber, mostly gum trees, ti-tree, manuka and occasionally blackwood..."  
      •   In an article in The North Coast Standard dated 12 June 1894: "... the Tasmanian manuka."  
      •   In an article dated 20 April 1895 in the Melbourne Leader: “manuka scrub” as distinct from “ti- tree”.  
      •   In a column dated 23 February 1895 in The Australasian: “manuka" as distinct from "ti- tree”.  
      •   In an extract from The Victorian Naturalist (Vol XXXIII 1916-1917) which refers to manuka (identified also by its scientific name Leptospermum scoparium).  
      •   In excerpts from the 1922 publication by F R Beuhne Honey Flora of Victoria that refer to Leptospermum scoparium as “manuka”.  
      •   In excerpts from the 1922 publication by F R Beuhne Honey Flora of Victoria that refer to Leptospermum scoparium as “manuka”.  
      •   In an excerpt from a 1922 government publication Some Wild Flowers of Tasmania that records Manuka is the common name for Leptospermum scoparium.  
      •   In a column about developments in extracting honey from the Adelaide Chronicle dated 2 July 1927 that refers to “manuka honey."  
     
      •   In "matters of rural interest " in the Adelaide Chronicle dated 28 November 1935 is a segment on “dealing with manuka honey.” At that date manuka honey was considered an inferior honey with a bitter flavour. The column offers advice on how to extract the manuka honey from hives.  
      •   In the Adelaide Chronicle dated 11 February 1937: “Honey takes, however, were very disappointing there, for the trees yielded very little and the small quantity taken from the hives provided, in many cases, to be tainted in flavour with the rank honey from Manuka or tea-tree blossoms.”  
       
      •   In a column about developments in extracting honey from the Adelaide Chronicle dated 2 July 1927 that refers to “manuka honey."  
       
      •   In "matters of rural interest " in the Adelaide Chronicle dated 28 November 1935 is a segment on “dealing with manuka honey.” At that date manuka honey was considered an inferior honey with a bitter flavour. The column offers advice on how to extract the manuka honey from hives.  
      •   In the Adelaide Chronicle dated 11 February 1937: “Honey takes, however, were very disappointing there, for the trees yielded very little and the small quantity taken from the hives provided, in many cases, to be tainted in flavour with the rank honey from Manuka or tea-tree blossoms.”  
       
      •   In the Border Chronicle dated 2 December 1938 reporting on developments in the bee-farming industry: “Manuka after treatment, much to the surprise of those present, was lighter in color and sweeter in taste than the well-known bluegum”.  
      •   An excerpt in a 1980 publication of the Forestry Commission of New South Wales, Trees & Shrubs for Eastern Australia: “Manuka tea tree" is the common name for Leptospermum scoparium.  
      •   An excerpt in a 1985 publication by the New South Wales Department of Agriculture on “Honey and Pollen Flora" by Alan Clemson. The text records that “manuka” is the common name for Leptospermum scoparium.  
      •   An excerpt in a 1985 publication by the New South Wales Department of Agriculture on “Honey and Pollen Flora" by Alan Clemson. The text records that “manuka” is the common name for Leptospermum scoparium.  
      •   In the 1993 "Bottlebrushes Paperbacks & Tea Trees", which records the common name of Leptospermum scoparium as Manuka.  
      •   In the 2004 " Native Trees of Tasmania" by JB Kirkpatrick and S Backhouse. It refers to Manuka as the common name for Leptospermum scoparium.  
      •   In the 2005 "Wildflowers of Tasmania" by RF Minchin stating that the common name for Leptospermum scoparium is “Manuka or Broom Tea Tree.”  
      •   In September 2010, the Australian Government commissioned a project to investigate existing and prospective markets and marketing activities for Australian honey. The report refers to manuka honey throughout.  
      •   In September 2010, the Australian Government commissioned a project to investigate existing and prospective markets and marketing activities for Australian honey. The report refers to manuka honey throughout.  
    END  
       
 
     
Background                      
New Zealand has recently (June 2022) agreed, subject to ratification, a Free Trade Agreement with the EU.

Included in it is a paragraph defining manuka in the EU FTA, in a chapter titled "Maori Trade and Cooperation".  This is a precursor to an attempt to have the term recognised in the EU as a Geographical Indicator. 		 
The text is in Chapter X.1 "Maori Trade and Cooperation", (g) and is as follows:  
  “Mānuka” refers to the Māori word used exclusively for the tree Leptospermum scoparium grown in Aotearoa New Zealand and products including honey and oil deriving from that tree. Mānuka (and its spelling variations including “Manuka” and “Maanuka”) is culturally important to Māori as a tāonga and traditional medicine.   
There are two issues with this statement resulting in it being both misleading and factually incorrect.        
  1. Leptospermum scoparium is known as Manuka on both sides of the Tasman. However, it is an Australian native plant, along with 79 other variations of Leptospermum.   
    The word Manuka has been in the Australian lexicon for nearly 150 years. Furthermore, it is not synonymous with tea tree, evidenced by a Tasmanian map dated 1884 where an area is described as having “Low tea tree and Manuka scrub”.  
  2. The paragraph is constructed in such a way as to convey a totally erroneous message, ie that manuka honey and manuka oil were traditional Māori medicines.   
    In the case of manuka honey, there were no native honeybees, with the first commercial hives populated with imported (European) bees not in production until around 1878.    
    For the next hundred years, manuka honey was regarded as a pollutant that beekeepers did everything they could to avoid the bees adding to the hives.   
                       
    While there has been traditional use reported for the bark and the leaves infused in hot water, it was not until the 1970s that it was discovered that manuka oil could be extracted from manuka leaves and the 1980s before the resulting product was commercialised.  
                       
Conclusion                      
  If NZ is successful in its narrative supporting exclusive use of the term "Manuka Honey" in the EU, it is likely to influence other jurisdictions in granting NZ intrests the trade mark for Manuka Honey. 

The adverse financial implications for Australian interests are obvious and cannot be overstated. 		 
About the Certification Trade Mark Application  
     
  History of the NZ Application                  
  August 2015                      
  UMF Honey Association (Inc) ("UMFHA") filed a Certification Trade Mark Application ("CTM") for the term MANUKA HONEY.

[Note: there was no mention in the application of the term having any Māori connotations so the application was never considered by the Māori Advisory Committee.]

 		 
    About UMFHA
UMFHA was established to licence its UMF manuka honey active ingredient rating system to its members. Its objects set out in its Rules are totally focused on this and the protection of its UMF trade mark.  It has however totally funded the CTM endeavours until at least 2020.  It claims that it's members account for over 80% of the manuka honey produced in NZ. 

 
  May 2016                      
  Application transferred to Manuka Honey Appellation Society (Inc) (MHAS).

  
    About MHAS
MHAS was established in April 2016 with its membership and its governance largely mirroring that of UMFHA. The entity itself is a member of UMFHA. Its primary object as set out in its Rules is " …... to act as guardian for the term MANUKA HONEY ….....".  [There is no expansion of the term, eg to include the Māori versions of the word manuka or of the term being a trade mark or any claim to exclusivity.]
A further feature of its Rules it that it has no powers to borrow, a specific requirement of the Act.
Although a membership organisation, MHAS has made no attempt to charge its members fees and has, until 31 May 2019, filed only NIL financial returns with the Registrar. 
In June a Financial Report was filed, erroneously to the year ended 31 March 2020, (there had been no change to the Rules requiring a 31 May year end).  The financial statements showed that in the 10 months to 31 March MHAS had been advanced $506k by UMFHA and incurred $662k of debt to its lawyers, Buddle Findlay (also lawyers for UMFHA). 

[Somehow an entity that has been financially dormant for two years suddenly incurred costs at the rate of nearly $117k per month leaving it technically insolvent, albeit the extent of which is uncertain given the question mark over the collectability by UMFHA of its advances given MHAS has no powers to borrow!  From a Note in the UMFHA financial statements, it is apparent that the recognition of this indebtedness is not unrelated to the prospect of government money coming into the project.]

 		 
  March 2018                      
    The application was initially declined and that decision was appealed.  The Assistant Commissioner of Trade Marks overturned the declination.  The success seems to have been largely predicated on the fact that it was (erroneously) claimed that Manuka is a Māori word. [See B1 of The Manuka Story.]
In the decision there were references to the fact that MHAS had withdrawn it intention to charge any NZ business for the use of the term manuka honey, if the application ended up succeeding.
As part of the Application process, Regulations have to be submitted setting out the terms and conditions needing to be met for any manuka honey to be permitted to use the term on its labelling. The party contracted in the Regulations to undertake the certification is UMFHA. [More about this further on.]

  
  April 2018                      
    As per normal practice, the CTM application was advertised and received two objections. One was from Ngai Tahu and the other the Australian Manuka Honey Association.
[A similar process is being played out in the UK also, with that initial declination being over-turned on appeal, again claiming that Manuka is a Māori word.]

 		 
  August 2019                      
    MHAS, an entity with no financial resources, no visible governance and no ability to derive an income, made an application to the Provincial Growth Fund and was successful in being approved for $5.7m of which $4m was to be a loan.
[Even if it was successful in its certification mark application, under trade mark law, it can not require those complying with the product specification to also be members of the society.]

 		 
  August 27, 2019                  
    This date saw the commencement of a formal engagement between the Crown and MHAS on the subject of advancing the IP applications with government funding. It appears that there had been prior discussions about a Māori led entity becoming involved with the quid pro quo coming from Ngai Tahu offering to withdraw its objection in the right circumstances.  There was discussion about a trust being formed.

  
  December 16, 2019                    
    A meeting was held that discussed (i) the transfer of MHAS's IP; and (ii) the assignment of the PGF application.  There was continuing discussion about issues relating to the loan component ($4m of the $5.7m) of the PFG funding offer.

  
  December 20, 2019                    
    A meeting was held between MHAS and interests from the proposed Manuka Charitable Trust ("MCT") where transition arrangements were discussed. Success was defined as the registration of MANUKA HONEY as a certification mark in 6 jurisdictions.
[It is believed that China, Australia, the EU and the USA have been declined or abandoned as being too difficult with NZ and the UK under appeal.]

 		 
  January 21, 2020                    
    At a meeting with the Crown, MHAS and MCT ("the project team") it was reported that the trust deed had been signed and that there was a timetable set from Ngai Tahu to withdraw its objection.  A funding timetable was also discussed.

  
  February 12, 2020                    
    A further meeting of the project team was held at which it was reported that all the trustees had signed the MCT trust deed. It was also reported that a letter of assignment had been drafted and that the was to be a MHAS AGM on 27 February.  Ngai Tahu would withdraw its opposition as soon and the assignment letter had been signed.
It was reported that the trustees had an issue with the loan component of the PGF funding given the intention to assign that funding to the control of MCT.

  
  February 25, 2020                    
    A further meeting of the project team at which it was reported that lawyers had agreed the Deed of Assignment and it was scheduled to be signed on March 3. 

 
  February 27, 2020                    
    We have not been able to ascertain what was on the agenda for this MHAS AGM nor what decisions had been made.

[Note: Because the single object of MHAS in its Rules was guardianship of the term MANUKA HONEY, the transfer of the CTM application would require a Rules change. There have been no new Rules filed with the Registrar.  Furthermore, there would be no ability for members to consider the transfer of the CTM application until the changed Rules had been accepted by the Registrar.  There has been no suggestion that a second members' general meeting had been held to deal with this matter.]

 		 
  March, 2020                    
    MCT registered the domain name mct.nz and posted an introductory flyer.  It included the following words: "It took over the work started by the Manuka Honey Appellation Society and is supported by a Government investment administered by the Provincial Development Unit."

[Note: This statement supports the above mentioned meeting notes and confirms that the CTM application was assigned to MCT as intended. It is also consistent with the thrust of the consultation hui around the motu. 
However this is not consistent with filings in relation to the trade mark appeals where MHAS is claiming to be the beneficial owner of the application and of the certification mark in the case of success.]

 		 
  August 2020                    
    Chairman Peter Luxton resigned from the committee leaving only two committee members, John Rawcliffe and Tony Wright.

[The Act and the MHAS Rules stipulate a minimum of three officers/committee members. This situation means that MHAS has no ability to transact any business yet it seems to still be an integral part of the MANUKA HONEY certification mark application, with two appeals on its hands, one on the UK and one in NZ.]

 		 
  Extracts from authoritative sources     Commentary re context  
A 18  Non-distinctive trade mark not registrable
1  The Commissioner must not register—
….......
(f)  a trade mark that consists only of signs or indications that have become customary in the current language or in the bona fide and established practices of trade.

Trade Marks Act 2002 		  One of the fundamental constraints in trade mark law is that a common use or descriptive word or term can not be registered as a trade mark.  The terminology used in the Act is "customary in the current language or in the bona fide and established practices of trade".

[The issue with the registration of the term MANUKA HONEY is that there is no other  word to describe honey from the manuka plant and it is a native of Tasmania and NZ.  Pivoting to the Māori version of the word "manuka", the focus of the consultation hui being held around the country by the MCT, both the UK and NZ Trade mark offices (in response to trade mark applications) have stated that the terms Mānuka Honey and Maanuka Honey are descriptive.  This is now demonstrated by many of the mainstream players in the manuka honey space using these versions as the norm.]
Tap in the link below.

 		 
     
B A certification mark is a sign certifying that the goods or services in respect of which it is used are of a particular origin, material, mode of manufacture, quality, accuracy, performance, or other characteristic. This differs from a standard trade mark registration whose function is to distinguish the goods or services that originate from a single party.
[Source - IPONZ]

     This explains the difference between a certification trade mark (certification mark) and a standard trade mark.

[Note: It is a condition of a certification mark that it is made clear on the labelling that status of the mark it is NOT that of a (standard) trade mark.
Another important point is that compliance with the specifications is the primary requirement for use of a certification mark and a condition such as being a member of a specific organisation is not permitted.]

 		 
C The owner of a registered certification mark has the same rights as those attached to a standard trade mark registration, including the exclusive right to use, and allow other persons to use, the certification trade mark. However, as the certification of goods or services must be undertaken by an independent organisation, the owner of the certification mark cannot trade in the goods or services concerned, or own a trade mark in respect of goods or services of the kind certified.
[Source - IPONZ]



 		    There are several key points here. (i) the organisation undertaking the certifying must be independent; (ii) the owner of the certification mark cannot trade in the same good nor have a trade mark related to those goods.  By extension the same rules apply to an agent of the certification mark owner.

[There are several points relating to the involvement of UMFHA in this certification process. As the party contracted to undertake the certification, it must be regarded as an agent of MHAS and as such, the same provisions in the Act apply.  This raises some specific issues: (i) it owns the UMF trade mark which is an integral part of any product using the UMF rating system (over 80% of all product); (ii) it is a member of MHAS as well as having significant control of the entity (ie the ability to demand payment and force it into liquidation if that is not forthcoming) because of the $662k indebtedness; and (iii) it is controlled by its members, the very people whose product it will be certifying.]

 		 
D The Commissioner must be satisfied that there are no relative grounds that would prevent the registration of the certification mark. The relative grounds for not registering a trade mark are concerned with conflict between the applicant and rights held by other persons, entities or traders and are set out in sections 22 to 30 of the Act.
[Source - IPONZ]

     [The multiple conflicts detailed above must provide grounds for the application to be declined.]  
E The applicant should provide evidence that it has the confidence of the wider section of the relevant trade in the applicant’s ability to certify the particular goods or services. The applicant may provide documentary evidence to establish this and that the applicant has a reputation in the trade and is competent to certify. This documentary evidence may take the form of declarations or letters from reputable people in the trade attesting to the applicant’s reputation in the trade.
[Source - IPONZ]

     This requires the certifying party to prove relevant expertise. An extension of this must be that the business model relating to the certification mark is capable of generating sufficient revenue for there to be a credible process.

[In discussions with IPONZ leading up to the Appeal hearing, MHAS agreed to delete from the Regulations the requirement for users of the certification mark to pay any fees.  As a result there is no mechanism for funding the certification process. This begs the question as to how the onerous conditions set out in the Regulations are going to be delivered and who is going to pay? 
It is significant that in the regulations there has been no attempt to expand the definition of the word "manuka" to include the Māori versions, a clear indication that it was never in the minds of the Regulation authors.]

 		 
           
F "If you pronounce Māori words correctly, it implies you have respect for the language. If you have respect for the language that would imply you have respect for the culture. If you have respect for the culture, you most probably have respect for the people."
Ker Opai from an RNZ programme broadcast October 2018

 		    ['Misspelt words are as offensive to Māori as those that are mispronounced yet the CTM application is focused on MANUKA, a word the Māori Language Commission has stated has no meaning in te reo!  The korero being used in support of the MHAS application is a classic case of trying to make the facts fit the argument, resulting in the attempts being both disingenuous and disrespectful of te reo!]

  

Common use examples of 'mānuka honey' as a descriptive term rendering it statute barred from trade mark registration. 		 
  Select
         
                 
 
         
           
           
           
           
           
           
                             
                 
 
           
             
             
             
                 
  “The funding is critical in realising the benefits of comprehensive protection of New Zealand mānuka honey primarily for consumers and producers, and also in how it will deliver wider economic and regional benefits for communities and iwi throughout New Zealand,” says Karin Kos, Chief Executive of Apiculture New Zealand.                
                             
                 
 
         
           
           
           
           
           
           
           
   
                 
 
 
  CONTEXT            
    The Manuka Honey Appellation Society (Inc) ("MHAS") in NZ has made applications in multiple jurisdictions to register the term MANUKA HONEY as a certification trade mark.   All applications were initially declined, fundamentally on the grounds that the term is descriptive and is therefore statute barred from registration..

However appeals in the UK and NZ were successful, largely on the basis that the contention "manuka" is a Māori word was accepted. (It is not. The Māori spelling is maanuka or mānuka.)

In both jurisdictions, the applications were then advertised which resulted in opposition from several parties, including AMHA. The legal processes with regard to these opposition proceedings are set for hearings in August (NZ) and September/October 2021 (UK). 		 
  SUMMARY since update above            
  >* MHAS has abandoned its appeal in the UK    
  >* MHAS has decided to not pursue its application in the EU afer an adverse ruling    
  > The NZ Assistant Commissioner could find no way to support the Applicant's apeal against declination.    
  > The Manuka Charitable Trust announced it would not be appealing the above decision, a statement that was itself curious because it had never disclosed it had succeeded MHAS as applicant, a disclosure that would have required to application to have had to be refiled.   
  > The Manuka Charitable Trust has since embarked on a new strategy to apply for "Mānuka Honey", (with the macron "a") as a trademark which it has commenced in the EU and UK. If they had undertaken their research and read the evidence submitted by the opponents in the UK case, they would know that both the UK and NZ Trademark Offices had indicated rejection of 2018 such applications because the term is descriptive, exactly the same issue as with the now abandoned application.   
  >* The latest (Y/e 2022) MHAS annual report has been filed raising more questions than it answers. For example there were two mysterious amounts from Comvita and Manuka Health totalling $350,000 characterised as income with no explanation.  [There is nothing in the Constituton that could permit these receipts.]
This report also highlights that there was no filing for Y/e 2021 in which there seems to have been mysteriious Other income of over $1 million.  		 
  >* The latest Te Pitau Ltd annual report shows a poor financial position, with significant negative equity.  
  >* There was an article published in the December issue of the Apiarist's Diary about an implosion within MHAS.  
  *    
   
  with tax-payer funds  
                 
 
 
  "Project MANUKA HONEY" (our characterisation)  is proceeding in the name of the Manuka Honey Appellation Society (Inc) ("MHAS") with over $5.7m of taxpayer funding from the Provincial Growth Fund ("PGF"). The sum of $4m is believed to be targeted at research.  The funding components are (approx) 70% grant and 30% loan.

Conditional approval of the application was announced on 25 Sept 2019. However there seemed to have been some technical problems (not the least of which being MHAS having no powers to borrow) so the application was assigned to the Manuka Charitable Trust ("MCT"), an exercise seemingly completed in March 2020. Subsequent instalments were made to MCT's operating subsidiary, Te Pitau Ltd.

Official documents (see link to an Excel file below in the PGF funding section) show the characterisation of the project thus:

MHAS Trademark Project: Protecting the term "Manuka Honey" internationally for all New Zealanders

[That has not been the messaging communicated to consultation hui (meetings) around the country in relation to this project. At these the focus has been on getting Māori buy-in but without a hint as to what any business modelling around a successful outcome might look like and who would benefit!  Note:  Over 50% of manuka honey exports are from companies that are controlled by overseas shareholders.]


  
    31 May 2019   MHAS files NIL financial statements with Registrar to this date (ie no assets, no liabilities and no revenue items)  
    25 Sept 2019   Announcement that MHAS had been successful in its PGF application (as a resourceless entity!)1  
    20 Dec 2019   Te Pitau Ltd ("TPL") registered (from Ngai Tahu office) with Pita Tipene as the sole shareholder  
    12 Feb 2020   Manuka (sic) Charitable Trust registered (from Ngai Tahu office)  
    13 Feb 2020   Share in TPL transferred to MCT  
    25 Feb 2020   Minutes of a meeting indicate that there were still outstanding issues between MHAS and MCT and it was noted that the PGF assignment was still pending..  
    27 Feb 2020   Scheduled date of MHAS members general meeting "To consider winding up on conditional basis, retained a skeleton staff for administration."  Neither the Notice nor Minutes for this meeting have been sighted.  
    24 Mar 2020   Its appears that the assignment was completed on or around this date meaning that the PGF funding could not have been approved prior.  
    31 Mar 2020   The year end date of the UMFHA financial report (filed 11/08/20) that disclosed by way of Note that it was owed $506k by MHAS and that MHAS also owed Buddle Findlay $662k, (sums created largely by way of Journal entry relating to prior period activities).  
    31 Mar 2020   The erroneous year end date (the Y/e should have been 31 May) of the MHAS financial report (filed 03/06/21) that disclosed:  
          Bank                   
Trade Creditors *
UMFHA   
Other creditors   		312
662,051
506,089
8,625 		   
          NET INDEBTEDNESS $1 176,453    
          * Buddle Findlay - Lawyers    
    18 Aug 2020   Resignation of Peter Luxton as an officer of MHAS leaving just two of the required three office-holders.  
  1 Up until 31 May, 2019 MHAS had filed NIL financial reports since inception (2016).  Approval of the PGF application was announced on 25 Sep 2019 and just over 6 months later MHAS was technically insolvent to the tune of $1,176,542.  
  Provincial Development Unit ("PDU" - PGF administrator)    
     
  Components and payments to 27/07/21 of PGF funding  
          Approved Paid Out-standing    
    Grant   $3,973,770 $827,366    
    Loan   $1,732,500 $1,488,333    
    TOTAL      
  [The information below needs to be considered in the knowledge that (i) MHAS has no powers to borrow (the Act requires specific powers to be granted in the Constitution); and (ii) in the absence of the minimum number of Officers (ie three), MHAS had no capacity to enter into any contractual arrangements.  
            Filed financials   Proforma  
            31-Mar-20   30-Apr-21  
    Current assets     Cash at bank $312    
    Creditors              
      Buddle Findlay       662,051   -  
      UMFHA       506,089    
      Others       8,625   -  
               
    Net Current Liabilities    
                   
    Intangible assets     $780,466    
                   
    Loans2              
      Te Pitau Ltd (paid on behalf) -   to UMFHA  
      Te Pitau Ltd (paid on behalf)3 - to Buddle Fin  
      Ditto (debt assumed by Te Pitau) -   to UMFHA  
              Sub-total  
      Advance from members4   to bank 500,000  
        Restructure loans      
    (all or mostly from PGF funds?)        
    Equity Deficit/Net Liabilities    
                   
    2  remembering MHAS has no powers to borrow  
    3  it is assumed that Te Pitau has paid this creditor  
    4   one can speculate that at least part of this has come from MCT as a member  
  Between 1 June 2019 and 31 March 2020      
    The sum of $1.177k owned to Buddle Findlay and UMFHA  
  Not before 24 March 2020      
    Approval of PGF funding to MCT  
  As at 27 July 2021      
  Funding from PGU              
      Grant            
      Loan            
                 
  Payments from funding*          
    [Likely] To Lawyers on behalf of MHAS for costs incurred prior to 24/3/2020        
         
    [Disclosed]  UMFHA on behalf of MHAS for costs incurred prior to 24/3/2020        
         
              Sub-total  
    [Possibly] To MHAS to provide evidence of solvency        
        500,000  
            TOTAL cash payments  
      Assumption of indebtedness to UMFHA by MCT  
      Likely benefit to MHAS from PGF funding  
  *
The normal condition re Government funding is that retrospective reimbursements are not permitted.  Reimbursing costs incurred by an unrelated party prior to an application date pushes the boundaries beyond accepted norms and should be investigated. 		 
                END