Part 32A.6 Information relevant to s 44 considerations in relation to claiming plants or plant materials

Similar nature, use and trade channels. Herbs are plants and as such the fresh herbs are encompassed within a broad claim for plants.

Similar use and trade channels. Both goods are fresh produce that can be consumed fresh or processed for meals, sold through the same trade channels, often in proximity to one another. Given this, if a sufficiently similar trade mark were used in relation to both goods, consumers would be likely to wonder the goods are from the same source.

Fruit or vegetables

(broad claim)

Nuts (fruits);

Specific fruits or vegetables

The broad claims encompass the specific goods.

Both are used for gardening and found through the same trade channels.

Grass and turf are plants matter that can be grown from seeds.

In both cases the goods are the same goods used for different purposes.

While both goods may be plants, they generally have a different purpose and function. Flowers are primarily decorative and are displayed, gifted, or used for events while fresh herbs are primarily ingredients and flavourings in culinary and medical settings. The goods are also generally sold through difference trade channels with flowers being sold through florists and flower markets, and fresh herbs being sold through greengrocers and supermarkets.

Plants are living goods purchased for cultivation, landscaping or ongoing growth, whereas cut flowers and flower arrangements are non‑living decorative goods intended for immediate display or gifting. They differ in nature, use, and are typically supplied by different traders through different channels. Consumers would not ordinarily expect plants, on the one hand, and cut flowers or flower arrangements, on the other, to originate from the same trade source.

Different nature: A vegetable is a plant or part of a plant used as food. Herbs are plants with leaves, seeds, or flowers used for flavouring, food, medicine, or perfume. 

Fruits or vegetables are harvested food products intended for immediate consumption, whereas seeds, grains, fruit trees, plants and seedlings are propagative or growing materials intended for cultivation and long‑term production, and animal feed is intended for livestock nutrition rather than human consumption. These goods differ in nature, purpose and use, are supplied through different trade channels, and are purchased in distinct commercial contexts.

These goods are typically supplied through different trade channels and are selected by consumers for different landscaping or horticultural objectives. Consumers would not ordinarily expect grass or turf, on the one hand, and trees, shrubs or herbs, on the other, to originate from the same trade source.

Broad claims for foodstuffs for animals will include the same goods (i.e. seeds are foodstuffs for birds).

In cases where a specific claim for a kind of animal food contains something as an ingredient that has gone through extensive processing to make a food product (i.e. wheat or pumpkin seeds as one of several ingredients in dog biscuits) the original good and the processed product are unlikely to be similar given the different nature of the goods and the channels in which they are made and sold.

Where the trade marks under comparison have a high degree of similarity, and the goods are sold in proximity with each other (i.e. fruit or vegetable sections in supermarkets) it is likely consumers would be caused to wonder whether a relationship exists between the trade sources of the goods and generally a GFR will be appropriate.

However, when there is a limited degree of similarity between the marks, distinctions between particular goods (such as bananas versus apples) may sufficiently mitigate the risk of confusion such that it is no longer real or tangible.