Updated: Was a Silver Fern Flag Rejected for IP Reasons?

Spoiler alert: No it wasn't - see end of post.

As noted previously, intellectual property issues seem to have dogged the #nzflag selection process.

However, one potentially popular option is repeatedly referenced as having been discounted because of an IP issue and that of course is the silver/white fern on plain black, another of Kyle Lockwood's submissions.

There have been many repetitions of a theme that the reason this type of design did not make the final short list was because it was too close to the All Blacks logo.

Only the panel can tell us, but if IP was the reason for rejection of this design, then that was an error in my view.

There are many silver/white fern designs which have been trade marked or are used throughout New Zealand and overseas. They all co-exist without any allegation of infringement. That is because a white fern on black is generic. There's really very little option in terms of how it is depicted. The threshold for showing that one design is an infringement of another is therefore correspondingly high. It would have to be a slavish copy of someone else's design to get anywhere near that threshold.

Ironically, the two leading cases that support this conclusion involve the New Zealand Rugby Union and it's ALL BLACKS logo - one a trade mark case where the NZRU's application to trade mark the fern alone was rejected (it's trade marks are only for the fern with the words ALL BLACKS included) and the other a more general Fair Trading Act/passing off case. I've attached them both if you want to have a read. In both cases, effectively, the Courts have said that the NZRU does not have a monopoly in a silver/white fern on black.

UPDATE: 16 November 2015, 2.56pm

Toby Manhire asked this question of the Flag Consideration Project people on twitter (thanks Toby). The answer - No IP was harmed in the making of the shortlist. So that's a relief.





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