I’m a recovering lawyer. Been in the game for nearly forty years. There, I’ve come out with it, and I feel a lot better.
Neil Diamond advises, in Crunchy Granola Suite, drop your shrink, and stop your drinkin’. I’m not sure about the application of these injunctions to a recovering lawyer. I don’t need a shrink, because I believe it helps to be ever so slightly unhinged when practising law. And life without wine would be a sentence.
Perhaps I’ll take to crunchy granola instead, and eat healthier food, which seems to be one message you could take out of the song.
Not that the last forty years have been interest free. I’ve represented the big end of town, and also acted against it.
What you learn about large corporations, particularly in the fast moving consumer goods business, is that they make a huge investment in their brands, registering trademarks and invading consumers’ minds with all manner of marketing and promotion.
And they protect that investment, with all the subtlety of a sledgehammer, wielded by expensive men in hand tailored Italian suits (lawyers).
Trademarks are used to distinguish your products or services from those offered by your competitors. Trademark law 1.01 tells you that if you have the mark registered you have the exclusive right to use it. As a trade mark, that is.
The Sunday Telegraph on 27 May 2012, in an article written by Elizabeth Meryment, reported that Danks Street Depot, in Sydney’s Darlinghurst area had had to remove its house made granola, apparently a popular dish, from its breakfast menu. The proprietor, Jared Ingersoll had received a letter from Sanitarium Health Food Company threatening dire consequences if granola was not removed forthwith from the menu. “Granola” the letter informed him was a trade mark owned by Sanitarium, and he should stop breaching Sanitarium’s rights.
Sanitarium owns the trade mark “Granola” in Australia, which has been registered here since 1921, and was standing on its rights. Jared Ingersoll reasoned that he’d have to sell an awful lot of granola to pay for a lawyer to save him from the dire consequences, and pragmatically he took granola off the menu. Or did he? What he did do was take the word
‘granola’ off the menu and replace it with another descriptor along the lines of ‘cereal, nuts, poached pear and sheep’s yoghurt’. Maybe ‘granola’ stayed on the menu but the description was changed.
This is the way it goes. You have to be very sure of your ground, and have more money than sense, or a surfeit of chutzpah before you take on one of these well-resourced behemoths.
And so we come to the point of all this: a little while ago I wrote a piece about bread, staff of life, (http://www.thewanderingpalate.com/produce/simple-pleasures-bread/) and when well made an absolute and inexpensive pleasure. One of the bakers in question, Irrewarra Bakery also happens to produce and sell granola, and was similarly threatened by Sanitarium.
Trade mark law 1.02: if your trademark becomes synonymous with the product itself the word becomes purely descriptive generic, part of everyday language if you like. There are recipes for granola all over the place and dictionary definitions aplenty.
Irrewarra and its directors refused to back down and ended up in the Federal Court of Australia for two years and four days. You have to admire a little bakery in the middle of country Victoria doing the David bit.
At crunch time, on 8 June 2012, the Federal Court made a common sense decision supporting the view that the word granola had become entirely generic, and in common usage to describe a clumpy roasted or baked breakfast cereal and while Sanitarium had the exclusive right to use it to distinguish its granola products from those of its competitors, the way Irrewarra had used the word was simply descriptive of the contents of the package, not as a trade mark. The trademark applied to its granola was “Irrewarra Sourdough”.
While Sanitarium has every right to defend its patch, you have to wonder a bit here. It now knows that it has the exclusive right to market its granola under the “Granola” Brand. Pretty simple stuff.
But what is also interesting about our legal system is that even when you win you lose. The loser in this case, Sanitarium, has to pay Irrewarra’s costs of the case, but the way those costs are calculated will leave Irrewarra out of pocket quite a bit. The system works a bit like the schedule fee rebate you get from your health fund (eg Medicare) where you end up out of pocket after a visit to the doctor.
This is why many take the pragmatic view, save their money and vast amounts of management time, and call a rose by another name.
So I’ll be buying Irrewarra Sourdough all natural hand made granola just to help the cause. It’s pretty good gear, and I’m recommending you do the same. By the way, Irrewarra claims on its website that it sells two tonnes of granola a week so that’s worth protecting and it means you should be able to find some. www.irrewarra.com.au