Bay of Plenty Business News - September/October 2020

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18 BAY OF PLENTY BUSINESS NEWS September/October 2020 Rotorua manufacturer moves into hand sanitisers Rotorua’s Damar Industries has launched a brand of hand sanitisers and related sanitising products and aims to produce up to a million litres a month to meet the demand for what has become an essential product and to future proof local supply. BY DAVID PORTER Damar Industries is the country’s largest manufacturer of ethanol-based consumer products and has decided to broaden its production in the face of surging customer demand for sanitiser and other cleaning products. It will sell the sanitiser under the brand name SaniHero. This is an entirely new category for 36-year-old family owned New Zealand business. Damar Industries has grown from a paint and varnish company working out of a cowshed, into New Zealand’s largest manufacturer of coatings, chemicals and aerosols. Currently most sanitisers are made offshore and imported into New Zealand. “During the early days of Covid-19 we saw widespread out of stock situations and it was clear that the reliance on imported sanitiser is a risk to individuals, our frontline workers and our wider medical services,” said Scott Thomson, founding director of Damar Industries. “The lack of supply of an essential product is untenable and left many people exposed and pressured into paying vastly inflated prices. “We believe Kiwis deserve to have access to products they need to keep them safe and we are absolutely committed to helping them do this. Supporting local business Thompson said the SaniHero launch not only enabled the retail and health sector to break the dependence on the international supply chain for an essential item, but it also supported local business efforts and more jobs for Kiwis. “Our chemists and laboratory have developed a superior sanitiser which has been proven to kill 99.99% of germs Damar Industries: Moving to meet new Covid-19 niche with sanitiser (right). Photos/Supplied and our Rotorua plant can easily produce sanitiser since it falls into our current area of expertise,” said Thompson. “In the longer term, we will be developing a hospital grade sanitiser to enable our DHB’s to source local as well. Our state-of-the-art plant and automated production lines enable us to produce up to a million litres of superior sanitiser every month. When we are up to full capacity, lack of supply will be a thing of the past for New Zealand.” Rotorua mayor Stevie Chadwick said: “It is great to see local businesses using innovation to create new products that will bring jobs into our community when we know that some of our traditional industries are struggling.” The mayor said the loss of tourists and the cancellation of events would have a severe impact on Rotorua, so the news of a local manufacturer stepping up in this way to grow local business and employment was especially welcome. Mitre 10 NZ is the first local retailer to get on board with the Made in New Zealand product. Damar Industries anticipates other retailers will soon follow. The SaniHero sanitizers are available in a 500ml pump bottle (RRP $9.95) and a 1L refill pouch (RRP $19.95). A handheld 60ml sanitizer option and an aerosol surface spray are in planning. Design and construction that stands the test of time ADVERTORIAL Locally owned family business Hawes Building Solutions is celebrating 20 years in business this year. Known for their quality workmanship and excellent service, the Hawes team is behind many high-end commercial and residential design and build projects in the region, and is a trusted name in the Bay. The company was founded by Mark Hawes in 2000, with his brother Anthony joining him a few years later after returning from the UK. Mark has been in the building industry for 28 years, and Anthony for more than 30. They have worked on many interesting projects over the years, such as the 1750m2 Cameron Road retail complex development and the 12th Avenue retail development which houses Westpac Bank plus other retail and office spaces. Their latest design and build project, due for completion later this year, is for Easy Gate in Tauriko. In collaboration with Kirk Roberts Engineers, Hawes has provided a cutting-edge solution for this client’s new offices, powder coating plant, and warehouse space. “We spent plenty of time talking with Easy Gate to understand their business and help them achieve an innovative design solution that suited their needs. “Early contractor involvement had many advantages, and we’ve made significant changes to their preliminary design to provide a more cost effective and fit for purpose building,” Anthony explains. We chose a concrete structure to mitigate noise and fire protection concerns and to simplify the construction process. A bespoke steel frame and roof system were also introduced to create a dust free environment. “We improved the look of the building and its longevity by proposing decorative precast panels and prefinished low maintenance roofing and joinery components. The interior has been specifically designed to meet the client’s operational requirements while allowing flexibility for future expansion,” Anthony says. Hawes Building Solutions has strong systems in place that ensure an easy process for their clients. With Mark in the role as Projects and Construction Manager and Anthony as Quantity Surveyor, their skills seamlessly complement each other. They lead a team of 20 which includes another Quantity Surveyor, a Registered Architect, Senior Site Managers, Carpenters, Hammerhands and Apprentices, as well as Chartered Accountant Suzanne Jansen who manages the office. A new office and warehouse building at Tauriko recently completed by Hawes Building Solutions. “We are proud of our team and enjoy partnering with leading architects and designers in the Bay of Plenty and Waikato to produce long lasting, high quality buildings” says Mark. Next to bespoke commercial and industrial buildings, Hawes Building Solutions also excels at residential design and build projects such as high-end new builds, major home renovations, and often complex leaky home remediations. They can organise the entire building process, from drawing up plans and dealing with council consents through to the finishing touches. This team of highly experienced certified builders work together well, and are passionate about detailed planning and flawless executions. To find out more, call Hawes Building Solutions on 07 578 2414, visit them at their Glenlyon Ave office in Greerton or online at www.hawes.build. The Hawes Building Solutions crew working at Matua Lifecare Retirement Village.
September/October 2020 BAY OF PLENTY BUSINESS NEWS 19 When IP rights are bona vacantia it ain’t no vacation In my last article I wrote about the importance of doing thorough due diligence on any business or asset acquisition. I recommended drawing up a list of due diligence issues, including identifying and verifying ownership of all intellectual property (IP) assets. With this article I explore a related issue – the risk of IP rights being bona vacantia after a business’s assets have been sold. Bona vacantia is Latin and means “unclaimed goods”. More broadly, it means unclaimed property. “Property” includes intangible assets like trade marks, patents, copyright, trade secrets and designs.* The issue of IP assets being bona vacantia most commonly arises in relation to registered IP rights. When does bona vacantia apply? Property owned by a company (limited or unlimited) is deemed to be bona vacantia if, immediately before the company is removed from the New Zealand Companies Register (the “Register”), the property has not been distributed or disclaimed by the company. (In the context of IP rights, “distributed” means assigned by way of deed or otherwise in writing to a new owner; “disclaimed” means withdrawn, cancelled or surrendered.) On removal of the company from the Register, ownership rights in the property vest in – pass to – the Crown. The Crown takes ownership of the property because the company no longer exists as a legal person and under New Zealand law the property must be owned by someone – it cannot remain ownerless. By way of example, if ABC Limited owns a registered trade mark, but does not assign or cancel the registration before the company is removed from the Register, the Crown will become the owner of that registration on removal of the company from the Register. Similarly, if XYZ New Zealand (an unlimited company) owns a granted patent, but does not assign or surrender the patent before the company is removed from the Register, the Crown will become the owner of that patent on removal of the company from the Register. Can you get your property back? If property does vest in the Crown, all is not lost. Property can be recovered by a person “who would have been entitled to receive all or part of the property, or payment from the proceeds of its realisation, if it had been in the hands of the company immediately before the removal of the company from the New Zealand register”. The recovery process is not a simple one, however, and may involve restoring a company to the Register. (I say “may” because for registered trade marks at least, entitled persons can pursue a private process directly with the Treasury, which does not involve restoring the company to the Register.) If the company is restored to the Register, then, subject to certain exceptions, any property vested in the Crown re-vests in the company as if the company had not been removed from the Register. This ‘restoration without interruption of right’ can be pivotal in retaining and enforcing IP rights – as a trade mark owner in England found out recently. In Fit Kitchen Ltd & Anor v Scratch Meals Ltd,** the plaintiff, Fit Kitchen Limited (“FKL”) successfully sued the defendant, Scratch Meals Limited (“SML”), for trade mark infringement and passing off. A key feature of the case was whether the trade mark relied on by FKL was valid. FKL applied to register its FIT KITCHEN logo trade mark (“Trade Mark”) on 8 August 2016. Unbeknownst to its director at the time, the application was made six days after FKL had been removed from the UK’s Companies Register for failing to file its annual accounts. The failure was due to an address mix-up. On discovering the company had been removed, FKL’s INTELLECTUAL PROPERTY ISSUES > BY BEN CAIN Ben Cain is a Senior Associate at James & Wells and a Resolution Institute-accredited mediator. He can be contacted at 07 928 4470 (Tauranga), 07 957 5660 (Hamilton), and benc@jaws.co.nz. director applied to restore the company to the Register; the company was duly restored on 11 December 2017. In December 2016, while FKL was not on the Companies Register, however, SML began using a similar FIT KITCHEN logo mark; it did so until November 2019. 1. In infringement proceedings brought by FKL in the Intellectual Property Enterprise Court, SML argued, among other things, that FKL’s trade mark registration was invalid because on the date FKL applied to register its trade mark it was a dissolved company, and a dissolved company cannot apply for a trade mark. Much to FKL’s relief, the Court disagreed. Applying very similar law to that in New Zealand, the Court found that as FKL was deemed to have continued in existence at all times, including on 8 August, 2016, the trade mark application was properly made by FKL and the Trade Mark belonged to FKL. Take homes To avoid a significant headache, all companies with IP assets should ensure: 1. The company’s details on the Companies Register are correct; 2. The company keeps a detailed register of all its IP assets, whether registered/ granted or not; 3. The company’s contact details for any IP assets on the Intellectual Property Office of New Zealand database (and any other databases, including domain name registrars) are correct; 4. If the company has an IP agent, the agent has up-todate contact details for the company; and 5. If the directors and shareholders of the company intend to wind the company up, then in preparation for removal from the Companies Register, all IP assets are assigned in the proper fashion to a new owner/new owners before removal. If any readers of this article require specific advice, or know someone who does, then contact James & Wells or your nominated IP attorney. Don’t leave it until it is too late. • References: * See the definition of “property” in section 2 of the Companies Act 1993. ** [2020] EWHC 2069 (IPEC).
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Bay of Plenty Business News - September/October 2020

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