Few words in our national lexicon are as evocative as "Anzac" - encapsulating as it does many of the images, characteristics, and values that we believe identify us as New Zealanders or, across the Tasman, as Australians. It is precisely this feature, and the growing interest in Anzac Day amongst younger (high-consuming) New Zealanders, that make the word such an attractive target for marketers. It is therefore timely to consider the future of Anzac Day and whether the Anzac legend and our national remembrance day should be surrendered to commercial interests.

Super League’s "Anzac Test"

Last year’s Anzac Day saw the emergence of several commercial ventures seeking to capitalise on the Anzac legend, the most notable being the inauguration of the Super League’s annual "Anzac Test" between Australia and New Zealand - the trophy for which includes a representation of an Australian slouch hat and New Zealand lemon squeezer hat. The Anzac Test was controversial not only for its use of the word "Anzac" but also for the manner in which the advertisements cast the participating athletes in the gladiatorial mould currently in vogue for the promotion of professional sports, suggesting in some way that they were modern "Anzacs". Bruce Ruxton, National Deputy President of the Australian Returned Services League, was featured in the advertisements proclaiming:

"Mark my words, Australia is still in grave danger from one of our so-called neighbours. The Kiwis were once our allies and now they’re on the other side - at least for 80 minutes".

The advertisement concluded with the words "lest we forget". Mr Ruxton was estimated to have been paid up to A$5000 for his part in the commercials (Sydney Morning Herald, 22 April 1997) and in an attempt to quell the furore Super League announced it would donate $20,000 to the RSL and provide free entry for returned servicemen. Super League’s explanation was that it was "trying to create a young audience" and that it could "contribute through our young audience so that young people should realise the great history and traditions of some of our servicemen [who] have gone away and given their life for their country" (Editorial, Sydney Morning Herald, 19 April 1997).

Legal Protection of "Anzac"

The commercial exploitation of Anzac is not a new issue. Within months of the landing at Gallipoli in April 1915 the Anzac legend was already taking shape and a substantial Anzac merchandising "business" burgeoned. The application of Aspey, White & Co in June 1916 to register "Anzac" as a trade mark in respect of dried fruit (Patents Journal, 8th June) and other similar activities precipitated moves by New Zealand’s war-time Government to protect the Anzac name and reputation from commercial denigration. (New Zealand Parliamentary Debates, Vol 177, July-August 1916, 29). Clause 33 of the ensuing War Legislation Amendment Act 1916 required little explanation when Sir Francis Bell introduced it to the Legislative Council as "a very important provision":

"The necessity for it arises principally with regard to the use of the word ‘Anzac’. We have been asked to prevent the misuse of that word in its application to trade-marks and so forth, and this enables such a trade-mark to be cancelled [by the Registrar of Patents, Designs, and Trade Marks]. It also gives a general power to protect the use of any such title which may in its application be offensive to public sentiment, and the Governor is to be the judge of what is offensive. I am glad to say such a provision is already in place in other parts of the Empire..." (ibid, 774-775).

This general power was immediately exercised by the Governor, the Earl of Liverpool, in Regulations promulgated in August 1916 (Gazette, 1916, at p 2893) which forbade "the use of the word ‘Anzac’ in connection with any trade or business". A specific exemption from this prohibition was made in December 1916 in a Regulation to permit

"the manufacture or sale, with the approval of the Attorney-General, of jewellery, ornaments, badges, or other articles having the word ‘Anzac’ thereon, provided that such word is not used as or for the purposes of a registerable design, or a trade mark, trade name, or description of such articles". (Gazette, 1916 at page 3765).

These Regulations are still in force pursuant to the Flags, Emblems, and Names Protection Act 1981, one of our more obscure laws relating to intellectual property. In respect of "Anzac" s 17(1) provides that the Governor General may by Order in Council

"prohibit, regulate, or control the use in connection with any business, trade, or occupation of the word ‘Anzac’ or of any other word that so closely resembles the word ‘Anzac’ as to be likely to deceive or mislead any person".

Section 17(c) of the Act deems the 1916 Regulations to be orders made under subs (1) of that section. Section 17(2) provides that every person commits an offence

"who uses the word ‘Anzac’ or any other word that so closely resembles the word ‘Anzac’ as to be likely to deceive or mislead any person in contravention of any provision of an order made under subsection (1) of this section".

The 1916 Regulations do not appear to have been revoked or impliedly repealed. Thus the contravention of these regulations is a criminal offence under section 17(2), the penalties for which are prescribed in s 24. Unlike section 33(5) of the War Legislation Amendment Act, the permission of the Attorney General is not required to bring a prosecution under section 17 of the Flags, Emblems, and Names Protection Act.

Elements of the Offence

The 1916 Regulations prohibit the use of the word "Anzac" "in connection with any trade or business" and, by virtue of section 17(2), the use "in connection with any trade or business" of "any other word that so closely resembles the word ‘Anzac’ as to be likely to deceive or mislead any person". Likelihood of deception need not be proved where the word "Anzac" itself is used as the deception element in the section applies only to any other words which may be ‘deceptively similar’ to "Anzac". (See section 20(1) as amended in 1992, paragraphs (a) and (b) of which have commensurate objects but use clearer punctuation than section 17(2), and also section 33(2) of the War Legislation Amendment Act).

How far does the prohibition on using the word "in connection" with a business or trade extend? Many uses of "Anzac" might appear to satisfy this definition but not be the sort of offensive use that is within the Act’s intended scope. Advertisements containing the words "open from 2:00-5:00 pm on Anzac Day", "official contractor for the Anzac Frigate project", or even "located on the corner of Anzac Avenue and ....." could all fall within a strict reading of the Regulations. A distinction needs to be drawn between the use of the word "Anzac" in a purely factual or descriptive sense, albeit in a commercial context, and uses that seek to appropriate the marketing goodwill of the word itself by identifying a manufacturer or product. Whether such a distinction can be read into the seemingly blanket prohibition in the Act is uncertain, but such a distinction would be consistent with the objects of the Regulations which were aimed at restraining merchandising rather than statements of fact, and this sort of reading down would probably also be necessary to avoid absurd consequences.

This distinction could not be extended to permit anything which amounts to a generic product description however (eg "Anzac cookies"), and certainly not to a firm-specific product such as "The Anzac Test". The exemption in respect of badge-type articles includes the proviso that "Anzac" not be used "as or for the purposes of a... description of such articles". This limitation to the exception would only make sense if use of the word "Anzac" to describe a product type breached the prohibition in the August Regulations in the first place.

There is no doubt that non-factual uses in connection with a business or trade breach the Act. Using the word "Anzac" as part of a company name (as one computer hardware manufacturer in California is currently doing) or indeed using the name "Anzac Test" seem to fall squarely within the ordinary meaning and objects of the prohibition in the Regulations and Act. Mens rea, if a requirement of section 17(2), would not of course necessitate proof that the defendant had knowledge of the law itself, but merely that the defendant had knowledge that the word "Anzac" had been used. So in effect anyone who deliberately uses the word "Anzac", or a word deceptively similar to it, in connection with a business or trade commits a criminal offence - with the possible qualification that purely factual statements in which "Anzac" is not associated with a product description would not fall within the prohibition.

Stewardship of "Anzac"

The RSA and RSL themselves have no legal proprietary interest in the word "Anzac" which, if it belongs to anyone, would be the common law property of the Australian and New Zealand Defence Forces - although ownership, as a right to license and control "Anzac", is an immaterial issue as the Regulations forbid all commercial exploitation. But the RSA and RSL have a strong claim to moral stewardship of the word and policy-makers will look to those organisations for guidance in its appropriate use. The New Zealand RSA was consulted by the RSL in 1997 about the proposed Super League test. The RSA had no objection to the playing of a match during the part of the day not set aside as a public holiday, but like the RSL it did object to the name "Anzac Test": "Anzac Day Test" would be more appropriate as this was an indication of the day on which the test would be played. Apparently by the time the advertisements had been produced the name had reverted to "Anzac Test". This year the test will be played on April 24th, and the RSA and RSL (which have dissociated themselves from the event) have again objected to "Anzac Test" preferring the more appropriate "Anzac Eve Test". This lacks the ring of "Anzac Test" and it remains to be seen whether the National Rugby League (the promoters of this year’s test) will respect the wishes of the RSA and RSL. Comments by Gerald Ryan of the NZ Rugby League to the effect that NZRL is not a commercial organisation and is not using the word in a commercial fashion reveal a degree of obstinacy in this respect (Sunday Star Times, 8th March 1998). From the discussion above it will be apparent that even "Anzac Day Test" is likely to breach the Act, notwithstanding the RSA’s preference for this form of name.

The issue of protecting "Anzac" is a delicate one for it concerns those who can no longer speak for themselves, and any relaxing of the absolute prohibition in the Regulations would inevitably involve making value judgments which many people may not feel entitled to make. For this reason there is some attraction in ensuring that the Regulations are properly enforced. No doubt many people do not object to the concept of an Anzac test per se: After all a fair portion of the Gallipoli Expeditionary Force’s spare time while training in Egypt was taken up by rugby (although presumably union and not league). But the Regulations make no allowance for subjective opinions as to tastefulness or propriety. The principle of the rule of law requires that the law be applied equally to all in accordance with the criteria contained within those laws. If the law is not enforced against everyone who breaches Act then, in fairness, it cannot be enforced against anyone. If the Anzac Test and other such promotions are allowed to proceed in their current form, absent specific amendments to the Regulations permitting those activities, then the spectre of pulling up to the drive-through for a $5 Anzac Feast ("a dinkum meal for diggers") looms, or perhaps even worse. One thing is certain however and that is that the soldiers who served in the Gallipoli campaign were protective of the name they had earned as "Anzacs". Christopher Pugsley in "Gallipoli: The New Zealand Story" (Hodder & Stoughton, 1984, p 25) quotes a poem from a contemporary magazine which expresses the sentiment well:

"....These are the Anzacs; the others may claim
Their zeal and their spirit, but never their name".

Responsibility for protecting the word and enforcing the law ultimately rests with the Government, and perhaps a policy statement is overdue from the Minister of Internal Affairs to deter any future misuse of "Anzac". Certainly the best interim course is for the prohibition on commercial exploitation to be enforced, but if the public sentiment is that the Regulations are out of date, and Anzac Day’s status as a solemn remembrance day should be reviewed, then the Regulations should be revoked or amended in the proper manner.

Postscript:

Anzac Day 1999 saw the continuation of the "Anzac Test", but although the advertising was much diluted from the previous years, this was probably only because the promoters of the event have already achieved their purpose – namely cementing the event in the minds of the public as being intrinsically linked to Anzac day. Certainly this was the impression given from the way the Test was referred to by the media. Other promotions did emerge in 1999, the most obvious being Farmers’ "3 Day Anzac Price Crunch". The advertisements featured three Anzac biscuits, all with a bite taken from them. Perhaps Farmers’ was testing the water with its promotion both in terms of legal consequences and public reaction. The latter point is probably the best means of resolving this issue. If returned servicemen themselves are seen openly to oppose this type of promotion, it will undermine the very purpose of using "Anzac". Claims by promoters that they are trying to keep the Anzac tradition alive would then hardly ring true.

© 1998-1999 Bram van Melle