Key Issues and Influences for the Trade Marks Act 2002 - Andrew Brown KC
Twenty years on from the New Zealand Trade Marks Act 2002 coming into force, this article examines the important international and local factors that influenced its timing and content. The article also documents significant legislative materials in the form of departmental reports to the Parliamentary Select Committee that resulted in changes to the legislation. The New Zealand courts have referred to this material when construing the 2002 Act and in particular when ascertaining its purpose and context. The fact that the New Zealand statute is drawn from the Trade Marks Act 1994 (UK), which in turn enacted into United Kingdom law the European Union Trade Marks Directive 1988, raises questions as to whether or how far New Zealand courts should follow European law. The article observes that the New Zealand courts have, on the whole, adopted a pragmatic approach of first determining whether the 2002 Act exhibits material differences before considering whether it is appropriate to follow the reasoning in United Kingdom and European jurisprudence. Finally, the article examines six specific New Zealand provisions where the legislature enacted New Zealand specific provisions and solutions.