Video | Agriculture | Confidence | Economy | Energy | Employment | Finance | Media | Property | RBNZ | Science | SOEs | Tax | Technology | Telecoms | Tourism | Transport | Search


Knauf fails to get Fletcher use of Batts trade mark revoked

Knauf fails to get Fletcher’s use of Batts trade mark revoked in ‘bendy, bulgy’ insulation case

By Tina Morrison

May 13 (BusinessDesk) - Knauf, the German building materials company, failed to get Fletcher Building’s use of the “Batts” trade mark for building insulation thrown out on the grounds that it is a common name in general public use.

In a 113-page High Court judgement, Justice Brendan Brown refused a request to revoke the trade mark, although he limited Fletcher’s claim of infringement of the trade mark to the use of “Batt” in the HTML code on the website which sold Knauf insulation, and said the use of the word in the installation instructions on the packaging didn’t infringe trade mark.

“There is clearly a not insignificant degree of use of the words “batt” and “batts” to describe insulation in a generic, non-proprietary sense,” Justice Brown said. “However, collectively this evidence is not of a quantity or a quality to cause me to be satisfied that the trade mark has become a common name in general public use for pieces of fibrous insulation.”

Separately, Justice Brown ruled that Knauf’s insulation product Earthwool contravened the Fair Trading Act, in the use and marketing of the name, and that in future it must be accompanied by the words “glasswool” or “glass insulation” in the same font and print size. Fletcher had argued that marketing of Earthwool was misleading because it conveyed the impression it was made from the wool of sheep or other animals when it was not.

Auckland-based Fletcher, New Zealand’s largest publicly listed company, is facing increasing competition from Knauf, which has about $1.9 billion in annual insulation sales worldwide compared to Fletcher’s $1.3 billion of total building product sales which also includes plasterboard, aluminium doors and windows, and roofing. In February, Fletcher said the local insulation market remained competitive as price declines offset volume gains.

The High Court case shows intense rivalry between the companies in New Zealand, where an estimated 15 million square metres of insulation products are sold every year, most of it made from glass. Fletcher’s subsidiary Tasman Insulation makes more than 7 million square metres of insulation from recycled glass a year, sold under the Pink Batts brand.

Knauf exported some of its Earthwool insulation to New Zealand in 2011, with packaging displaying the words “batt” and “batts” in the installation instructions, with sparked the litigation. Fletcher protested the use of its trade mark word “Batts”, with Knauf subsequently claiming the word had become generic to describe insulation, although it later agreed to stop using the word.

In November 2011, Knauf filed to revoke the “Batts” trademark and in December, Fletcher started trademark infringement proceedings against Knauf and websites marketing its product.

In 2012, the two companies stepped up their competitive marketing campaigns, with Knauf saying its product was driving competitors “batty” and Fletcher responding in a presentation to trade customers about the durability of its rival’s product, claiming it was less stiff, “susceptible to slumping” and showing photographs of how bendy the rival product was.

Knauf claimed in an advertisement that the competitor was trying to discredit its product by saying the insulation was “bendy, slumpy, bulgy and bursty” and an associated promotion required customers to enter the code “TASMAN-BS”.

Fletcher’s Tasman unit objected, saying it hadn’t released any statement to discredit its rival using those words. Justice Brown said that although Fletcher had described the Knauf product as “slumpy” and “bendy” in presentations to its New Zealand trade audience, the reference to the product being prone to “bursting” was made by Fletcher Insulation in Australia and hadn’t been presented in New Zealand.

Justice Brown therefore concluded that Knauf’s inclusion of the words “bulgy and bursty” contravened the Fair Trading Act.

The court found Fletcher was itself in breach of the Fair Trading Act when it undertook “Titanic test” demonstrations to builders in which it submerged Pink Batts and Earthwool in water to show the Earthwool product sank first.

Knauf argued that the testing of buoyancy and water absorption were not relevant to the fitness of the product’s use as intended and appeared designed to communicate the existence of a problem which doesn’t exist. As part of the demonstration, Fletcher required that its product be removed from the water before it also sank.

Justice Brown ordered inquiries for damages and asked the parties to file memoranda as to costs.


© Scoop Media

Business Headlines | Sci-Tech Headlines


Shocking Dairy Footage: MPI Failing Our Animals And Damaging Our Reputation

Greens “Nathan Guy needs to urgently look into how his ministry is enforcing animal welfare standards, how these appalling incidents happened under its watch and what it’s going to do prevent similar incidents happening again in the future." More>>


Land & Water Forum: Fourth Report On Water Management

The Land and Water Forum (LWF) today published its fourth report, outlining 60 new consensus recommendations for how New Zealand should improve its management of fresh water and calling on the Government to urgently adopt all of its recommendations from earlier reports. More>>



Welcome Home: Record High Migration Stokes 41-Year High Population Growth

New Zealand annual net migration hit a new high in October as more people arrived from than departed for Australia for the first time in more than 20 years. More>>


Citizens' Advice Bureau: Report Shows Desperate Housing Situation Throughout NZ

CAB's in-depth analysis of over 2000 client enquiries about emergency accommodation shows vulnerable families, pregnant women and children living in cars and garages, even after seeking assistance from the Ministry of Social Development and Housing New Zealand. More>>


Get More From Scoop

Search Scoop  
Powered by Vodafone
NZ independent news