How does a country brand itself to the rest of the world? It was revealed earlier this month that the National Brand Advisory Council has recommended a new Nation Brand. Some media commentators asserted that this meant the well-known kangaroo-in-a-triangle “Australian Made” logo is to be “replaced” with a new Nation Brand wattle logo (apparently not true) that allegedly cost a lot of money (not for me to judge).
This post discusses how Australia brands itself, and what the new Nation Brand might mean for businesses which utilise the Australian Made logo on their products, and consumers who look out for it to guide their purchasing decisions. (The short answer is The Australian Made logo is not changing, but keep reading – this is a good story abut intellectual property meeting foreign policy and soft power, and about the origins of the government’s current brand, the Coat of Arms, in heraldry and chivalry.)
This post doesn’t discuss whether the new Nation Brand logo is any good in a marketing sense, or whether taxpayers’ money spent on it was good value. Those are for the public to decide.
“Australian Made” trade mark
The “Australian Made, Australian Grown” logo (to use its full description) is very well known and symbolises to consumers that a product has been – exactly as the name suggests – made in Australia.
A search of the Trade Marks Register quickly reveals that the owner of the Australian Made trade mark is not actually the Australian government. It is owned by a not-for-profit public company called Australian Made Campaign Limited (AMCL). Its website says that it was established in 1999 by the Australian Chamber of Commerce & Industry and state / territory chambers of commerce, and that ownership of the trade mark was assigned to it from the Australian government in 2002.
Accordingly, we can immediately say that the trade mark is not owned by the government, and is therefore not the government’s trade mark to “replace”.
Trade mark number 451318 is the logo in black and white. Its registration goes back to 29 August 1986, and is registered in respect of all goods in all trade mark classes.
Trade mark number 1833132 is the same logo in colour. Its registration is more recent, dating from 22 March 2017, and is registered in respect of a very wide range of goods over all goods trade mark classes. Back in 1986, colour trade marks didn’t exist, so perhaps this was an update to address that.
Back in 1986, it was also possible to register trade marks over all goods in each class of goods or services – in other words, to sweep the field. That is no longer possible, so this trade mark goes to great lengths to specify all the various goods in respect of which it is registered. From the mundane (“fresh fruits and vegetables” in class 31) to the ridiculous (“tombstones” in class 19). From the expected (“clothing, footwear, headgear” in class 25) to the unexpected (“sexual activity apparatus, devices and articles, being sex aids” in class 10). From the conventional (“spun wool” in class 23 or “common metals and their alloys” in class 6) to the controversial or outright banned (“asbestos” in class 17 or “cigarettes, cigars” in class 34 or “goods of … ivory, whalebone” in class 20).
“Australian Made” as a certification trade mark
Importantly, the Australian Made logos are certification trade marks.
While standard trade marks are used to identify the business which is the trade source for goods or services, certification marks are used to certify that goods or services meet a particular standard or characteristic. In the case of the Australian Made logo, this is obviously that the goods were made in Australia. So although it is owned by AMCL, subject to complying with its licensing requirements (including paying licence fees), it can be used by any business which meets the criteria, over a large range of goods.
Each certification trade mark has a set of published rules that must be approved before it can be registered. These rules set out things such as how to determine that goods meet the required standard (in this case, being made in Australia), and requirements for the use of the mark (in this case, how the logo must be presented, and certain financial / auditing requirements for licensees). The rules must be approved by IP Australia and the Australian Competition and Consumer Commission (ACCC).
The Australian Made logo certification rules for the colour logo the same as the “Code of Conduct” that AMCL requires licensees comply with to be able to use the logo. Despite having a poke at some of the registered goods (above), paragraph 29 of the Code of Practice states that AMCL may refuse to grant a licence where it considers the product would bring the logo into disrepute, so it’s doubtful that permission would actually be granted to use the logo in respect of some of the unexpected examples of registered goods listed above.
The logo is also used for country-of-origin food labelling. This became mandatory in 2018 for food products sold in Australia. Compliance with this program is managed by the ACCC.
There is no reason to think that the Australian Made logo will change. AMCL has posted a statement saying that it will not.
The Commonwealth Coat of Arms as intellectual property
Although the Australian government is developing a new “Nation Brand” (see below), the government already utilises the formal Commonwealth Coat of Arms as a logo and has branding guidelines for its use. The Coat of Arms was “granted” to the Commonwealth of Australia by King George V in a warrant in 1912.
This takes us to the obscure and archaic field of the Law of Arms, along with antiquated concepts of heraldry and armorial ensigns granted to nobility. These grants are made by the College of Arms in the United Kingdom, which claims to be “still the official heraldic authority for England, Wales, Northern Ireland and much of the Commonwealth including Australia and New Zealand”.
In antiquated language, the warrant for the Commonwealth Coat of Arms proclaimed that:
“We of Princely Grace and Special Favour have granted and assign for the Commonwealth of Australia the Armorial Ensigns … [which are then described at length] … to be borne and used by the said Commonwealth upon Seals, Shields, Banners or otherwise according to the Laws of Arms”.
(The arcane language of the warrant describes that the kangaroo and the emu on either side of the shield are the “supporters”, with the kangaroo on the “dexter” and the emu on the “sinister”.)
Noel Cox argued in an article published in the Australian Intellectual Property Journal in 2001 that the Law of Arms is not part of the common law in Australia (or New Zealand), but:
“… although the common law courts do not regard coats of arms as either property or as being defensible by action, armorial bearings are a form of property nevertheless, generally described as tesserae gentilitatis or insignia of gentility.”
That article also points out that in the United Kingdom, exclusive jurisdiction of deciding rights to coats of arms was vested in a court called the High Court of Chivalry, whose principal business was the control of armorial bearings. That court is now effectively obsolete in the UK, and has no equivalent in Australia in any case.
The short point of all this is that heraldic ensigns are not easily (if at all) protected as a form of intellectual property in modern Australia. So how does the government control the use of the Coat of Arms?
- There is a crime of falsely representing to be a Commonwealth body, or representing to be acting on behalf of one, contained in the Commonwealth Criminal Code (section 150.1). Conceivably, this could catch conduct that includes misusing the Coat of Arms for that purpose. As explained in the Bill Digest for the Criminal Code Amendment (Impersonating a Commonwealth Body) Bill 2017 (which Parliament has since passed to create this offence), this provision was only added to the Criminal Code after the 2016 Federal election “Mediscare” incident, when a mass text message sent to voters was accused of impersonating the government body Medicare for electoral gain.
- In some circumstances, misuse may also constitute trade mark infringement. Although the Coat of Arms does not appear to be registered as a stand-alone trade mark, it does appear as a portion of some trade marks registered to government agencies or bodies in combination with another part of a logo. For example, trade mark number 1482503 is registered to the ACCC in respect of legal and consumer advocacy services.
- If used in a commercial setting, falsely representing to be a Commonwealth agency, or somehow affiliated or connected with, could constitute misleading or deceptive conduct prohibited by the Australian Consumer Law.
- The importation of goods to which the Coat of Arms (or an imitation Coat of Arms) has been applied is prohibited without government approval.
- Copyright may protect logos as artistic works.
Nonetheless, it makes sense that the government wants to control the Coat of Arms’ “proper use”, as for example:
“When attached to a document, it gives that document official status and the content of the document enjoys the imprimatur of the Commonwealth of Australia.”
Therefore, the Australian government has published branding guidelines for the Coat of Arms and how it is used, and by whom. This includes guidelines for how it should be used by government and approved organisations, mainly dealing with the dignity of the Coat of Arms, by whom it may be used, and the settings in which its use is permitted. One express request is please don’t use it as a tattoo.
The new “Nation Brand” logo
Finally turning to the media controversy of recent days, the Australian government has been working on Australia’s “Nation Brand” since the 2017 Foreign Policy White Paper noted, in the chapter discussing Australia’s soft power, that the government:
“… will develop a stronger nation brand that reinforces our reputation as an internationally competitive investment destination, a great place to visit, a quality provider of education and a trusted exporter of premium quality goods and services. This will complement our broader trade and investment policies and add impetus to our major economic partnerships.”
The Nation Brand pages of the Austrade website go on to explain:
“Australia’s Nation Brand will be used to talk about the uniqueness of our exports, demonstrate our advantage to investors, boast of the experiences we offer tourists, present our attractiveness to draw students and inspire admiration here and abroad.”
Therefore, the Nation Brand is more about international positioning and image, which is something quite different to the limited purpose of certifying that goods are, in fact, made in Australia. The Nation Brand will be used by government to promote Australia generally, and time will no doubt tell us exactly how.
The Nation Brand Advisory Council’s recommendation to government from December 2019 has been published on the Austrade’s Nation Brand website in recent days. It reveals a new logo, described as resembling Australia’s national flower emblem, the golden wattle. Other branding has been developed including a colour palette, typeface and brand usage guidelines – all the stuff that marketing people love.
In this regard, an application was made by the Australian government (via Austrade) on 3 February 2020 for trade mark 2066446:
(The image has been characterised in the IP Australia trade marks database as a “dandelion” as well as “wattle”.)
Trade mark applications have also been made for some variations of this logo, for example without the letters or word, or for “blots and dots” (as the image indexing keywords on the trade marks register describe). Some of these are as follows.
Trade mark 2066450
Trade mark 2066452
Trade mark 2066458
Again, like the Australian Made logo, the applications have been made in respect of a very broad range of goods and services, although not entirely overlapping with those registered for the Australian Made logo. At the time of publishing this post, the trade mark applications are still in progress.
By distinction, these are not applications for certification trade marks. Their purpose is therefore not to certify that goods or services have any particular quality or characteristic (such as being from Australia).
Accordingly, their intended use by the Australian government across such a broad range of registered goods is presently somewhat unclear. Is the government going to use them (among many other things) in respect of “artificial gem stones” in class 14, or “dietetic food and substances adapted for medical or veterinary use” in class 5, or “textile pads impregnated with cosmetics” in class 3, as per the specifications set out in the applications?
It is conceivable that the government will license the logo to businesses, perhaps to allow them to signify their association with this branding strategy. The Nation Brand Advisory Council recommendation suggests some “private sector partnership” concepts (see page 21). Would you like some wattle branded postage stamps, or golden wattle logo airliners flying people around the world?
Part of the recommendation (again, see page 21 and page 23) is “to explore alignment” with the Australian Made campaign by amending the colour palette of the Australian Made logo (to a deeper green and gold) to complement the proposed new Nation Brand.
However, if the intended use is non-commercial government business (government websites, trade show pavilions, etc), to that extent, its function may not be that of a registered trade mark in any case. In terms of protection, that puts non-heraldic government branding also back in the same position as the list of options set out above, the most potent of which is criminal sanction for impersonation.
Instead of the possible replacement of the Australian Made logo, a better question may be to what extent the government intends to replace the use of the Coat of Arms in some circumstances, or whether the Nation Brand is another layer of branding over the top.
There is no suggestion that the Coat of Arms’ official function and purpose will be replaced by the new Nation Brand wattle logo. Don’t expect the Coat of Arms on the exterior of government buildings to be replaced, or Defence Force uniforms to suddenly spring up with golden wattle logos instead of using the Coat of Arms. Indeed, the Nation Brand website hosted by Austrade uses both in combination.
- The Australian Made logo is owned by an entity outside government, and is therefore not the government’s to take away or “replace”.
- The Australian Made logo is a certification trade mark, available to businesses to use to show that their products are made in Australia (subject to their compliance with the logo’s licence terms and conditions and payment of licence fees). That will continue.
- The Australian government already uses the Coat of Arms essentially as a brand. (Incidentally, it has heraldic origins quite out of step with modern society.)
- The Nation Brand currently being developed instead seems to be more about developing a brand to project Australia’s soft power, and government messaging and promotion in that sphere. For example, it is unclear to what extent it will be used instead of, or alongside, the Commonwealth Coat of Arms that the government currently uses across much of its branding.
- There has not yet (at the time of publishing this article) been an official announcement about the implementation or launch of the Nation Brand, so its potential for licensed use by non-government entities remains unclear.
- This article doesn’t comment on whether the new Nation Brand is any good, or value for taxpayers’ money. That’s for the public to decide over time.