OxoPak Pty Ltd – Certification trade mark applications

Closes 31 Jan 2019

Opened 23 May 2018

Overview

The Australian Competition and Consumer Commission (ACCC) has issued an initial assessment of four certification trade mark applications lodged by OxoPak Pty Ltd. The marks, together with their application numbers, are illustrated below.

The ACCC’s initial assessment is that it proposes not to approve the CTM applications. A copy of the ACCC’s initial assessment statement of reasons is attached below.

CTMs can provide consumers with certainty about the particular standard a product or service meets. In this case the ACCC is concerned that there is a disconnect between what is being tested under the certification regime – that plastic packaging meets specified standards of ‘oxo-biodegradability’ – and what the CTMs may represent to consumers.

In particular, the four marks provide an impression about the net positive impact of the plastic product on the land and marine environment and food safety, compared to plastics that are not oxo-biodegradable. For the purpose of assessing these CTMs the ACCC has focussed its assessment on whether consumers would be misled by the food safety and environmental claims made by the marks.

Additionally, some key certification requirements are not specified within the CTM Rules or are subject to the discretion of OxoPak. It is important that certification requirements are clear, unambiguous and specified within the CTM Rules, as discretionary or ambiguous criteria leave open the risk that consumers could be misled about the certification process and standards.

The ACCC invites you to comment on the ACCC’s initial assessment before it issues its final assessment.

OxoPak's application

The CTM rules state that OxoPak will use the CTMs to indicate that the approved product meets 'higher standards of Degradability, Biodegradability, and Eco-toxicity than other products within the same product category'.

The CTM rules set out packaging requirements and various standards of oxo-biodegradation that applicants for the trade mark must meet in order to be certified.

Applicants must demonstrate the ability to comply with the rules, OxoPak's Marketing Guidelines and any other OxoPak policies that it deems relevant.

ACCC Role

Under Part 16 of the Trade Marks Act 1995 (TMA), before a CTM can be registered by IP Australia the ACCC must be satisfied that certain criteria are met. In general terms, the ACCC must be satisfied that the CTM application and corresponding rules meet the technical requirements set by the TMA and do not raise consumer protection, competition or associated concerns.

Submissions

Submissions should be emailed to CTMs@accc.gov.au with the subject “CTMs 1852559 – 1852561-63- OxoPak Pty Ltd - Submission”. Submissions are due by a date to be fixed (likely January 2019).

For further information about the application and next steps please see the ACCC consultation letter dated 22 November 2018.

Confidentiality 

All submissions will be treated as public documents and published on the ACCC website unless otherwise requested. Submissions requesting exclusion from publishing should be clearly marked and include reasons for the exclusion.

Audiences

  • Industry
  • Consumer groups
  • Government

Interests

  • Consumer issues
  • Competition issues