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NZ tomato name causes sensation

Horticultural company Turners & Growers has lost a bid to trade mark its Sweet Sensation brand of tomato in a rare intellectual property case. Turners & Growers, which supplies fresh produce to supermarkets and others in the food industry, tried to register the trademark Sweet Sensation, the name of one of its tomato lines, in 2010. It had launched the brand the year before.

However, competing tomato grower J S Ewers had also begun using the name Sweet Sensation for one of its lines of cocktail tomatoes in 2010. Turners & Growers then told J S Ewers managing director John Ewers to stop using the brand name.

In response Ewers applied to the Intellectual Property Office to declare the trade mark invalid. Following a hearing in July, the office found the trade mark invalid as the brand did not have distinctive characteristics.

The office said Ewers was ''aggrieved'' as the Sweet Sensation brand was profitable for his company and it found his business would suffer if he was forced to stop using it.

The business would incur the cost of wasted packaging and Ewers' goodwill in the profitable tomato product line could be affected, the office said.

Turners & Growers was ordered to pay more than $3600 in costs to Ewers.

New Zealand Gardener editor Jo McCarroll said it was unusual for a horticultural company to trade mark a brand. Horticultural companies often protected their rights to grow and sell a specific plant variety under plant variety rights laws, she said. However, it was rare for companies to try and protect the branding of a variety, McCarroll said.

In this case the name 'Sweet Sensation' was too generic to trade mark, she said. A lot of produce names included the word ''sweet'', she added. McCarroll said it was likely similar cases would start cropping up as horticultural companies started recognising the power of branding.

Consumers were becoming more aware of what they were looking for in produce, she said. Growers were taking advantage of this by incorporating regions of origin and adjectives into plants' names, McCarroll said. ''Undoubtedly people are becoming more aware and more informed that not all tomatoes are created equal.'' McCarroll said, " cooking shows like MasterChef were largely to thank for more educated consumers."

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