An "extraordinary" campaign by a doctor with controversial views on Sudden Infant Death Syndrome forced a New Zealand children's charity to put Red Nose Day on hold for more than a decade, but that should not mean it loses the rights to its trademark, a court was told today.
Cure Kids is in the High Court at Auckland today appealing against a decision to revoke its use of the Red Nose Day images and logos after a challenge by an Australian charity which claimed the rights to the fundraising event.
The National Sids Council of Australia says it holds the registered trademark to Red Nose Day and it would be confusing to the public for two separate charities in the Australasian region to use it.
In court today, counsel for Cure Kids Julian Miles QC said the New Zealand public associated Red Nose Day with the charity and believed it to be a New Zealand campaign. This was despite a Red Nose campaign not running between 1997 and 2010.
Among the arguments put before Justice Simon Moore today, was that "special circumstances" existed in the Cure Kids case which accounted for the non-use of the trademark during those 13 years.
"It would be difficult to find a more classic example [of special circumstance]," Mr Miles said.
Dr Jim Sprott claimed his research into Sudden Infant Death Syndrome (Sids or cot death) showed it was caused by toxic gases from cot mattresses, and advocated the use of a plastic mattress cover.
"In all the years I have been in practice I can't remember such a sustained and vitriolic and effective campaign as Dr Sprott's was," Mr Miles said.
The decision not to run the campaign from 1998 onwards following the controversy was "inevitable", Mr Miles said, and not out of choice.
"It's not in my client's interests to delay bringing it back to the public any longer than it has to because this is its premium source of income," he said, referring to the charity clearing $290,000 in the 1997 Red Nose Day appeal.
Board minutes at the time showed that "effectively the image had become unsustainable, sponsors were unwilling to be involved and really the brand had been poisoned", he said
"But importantly, it makes it clear that it's just been put on hold, and the objective evidence supporting that is they continued to renew the trademarks."
Cure Kids' brand association with the Red Nose Day appeal in New Zealand was so strong -- even after 13 years of no campaign -- that it would have a case against Sids Australia if it attempted to register the trademark in New Zealand, Mr Miles said, because it held a "significant residual reputation" with the fundraising event.
"It's highly probably that an officer of the court would say the likelihood of confusion if [Sids] registered with the mark in New Zealand is such that it would never be accepted."
By Patrice Dougan of APNZ
