A2 milk has become popular with consumers in recent years. This type of milk is said to be easier to digest than regular cow milk, due to only containing the A2 beta-casein type protein, whereas regular milk contains both A1 and A2 proteins. Advocates for A2-only milk say the A1 protein causes indigestion. The fast-growing A2 category has been taken up by some of the world’s largest food and beverage companies such as Danone and Nestle in recent years.
New Zealand’s A2 Milk Company (“A2 Milk”) has had wide success selling its A2 branded products in New Zealand, Australia, China, the USA, Canada and is expanding further globally.
An Australian rival company, Care A2 Plus, has been using branding which contains the “A2” term on their dairy products. Care A2 Plus have also applied to register several trade marks in Australia which contain the term “A2”. The New Zealand company is taking legal action against Care A2 Plus, for breaching its trade mark and is seeking an injunction preventing Care A2 Plus from selling its products in Australia. The New Zealand company has also opposed several trade mark applications made by Care A2 Plus, for marks which contain the term A2 placed quite prominently.
A2 Milk has asked the court for a permanent injunction restraining Care A2 from selling, advertising or distributing products in Australia which infringe its registered trademarks and which are substantially identical with or deceptively similar to its registered marks.
A2 Milk claims shoppers in Australia who buy or use A2 dairy products, are likely to understand that the goods are authorised, approved by or associated with the New Zealand A2 Milk Company, and it is seeking damages or an account of profits for the trade mark infringement.
A spokesperson for A2 Milk has said that the company vigorously protects its intellectual property rights, including trade marks. The question may be however – is the term “A2” descriptive of the dairy products in terms of nature or quality and therefore, should anyone have exclusive rights to it? We believe this will be a question raised in future litigation proceedings and continue to watch this case with interest.
Got questions about descriptive trade marks? Please contact our trade mark attorneys on 07 3369 2226 or email mail@mbip.com.au.