NEW ZEALAND Law and Practice Contributed by: Fiona Ashby, Luke Bowers, Daniel Erickson, Jessica Phillips, Natalie Foster, Shelley Slade-Gully, Tina Liu and Theresa Le Bas, Tompkins Wake
Conduct can be caught if any act or omission that forms part of that conduct takes place in New Zea - land, including conduct outside New Zealand where that conduct affects a market in New Zealand. Pecuniary penalties may be ordered not only for breaching Section 36, but also for attempts to breach, and for aiding, abetting, counselling, procuring, being knowingly concerned in or being a party to a contra - vention. The maximum penalty that may be ordered in respect of each contravention is NZD500,000 in the case of an individual, or the higher of the following for a body corporate: • NZD10 million; • three times the value of any commercial gain resulting from the contravention; or • if the commercial gain cannot readily be ascer - tained, 10% of the turnover of the person and all its interconnected bodies corporate (if any) in each accounting period in which the contravention occurred. New Zealand’s intellectual property laws protect the rights of creators, brand owners and innovators, align - ing with international standards through agreements such as the TRIPS Agreement and obligations under the World Trade Organization. The Patents Act 2013 grants inventors the right to control the use of their inventions, with protection lasting for 20 years from the filing date. Registration Requirements To be patentable, an invention must be novel (it must be new) and must involve an inventive step (it must not be obvious to a skilled person in the field). Certain cat - egories are excluded from patent protection, including methods of medical treatment for humans, diagnos - tic methods on humans, and inventions contrary to public order or morality. Embedded software that is integral to a technological innovation can be patented, 7. Intellectual Property 7.1 Patents Definition and Duration
and Swiss-type claims (the use of known substances for new medical treatments) are recognised for phar - maceuticals. Patents are registered through the Intel - lectual Property Office of New Zealand (IPONZ). Enforcement and Remedies Re-examination and opposition procedures allow third parties to challenge the validity of a granted patent. Enforcement of patent rights is pursued through the courts, with available remedies including injunctions to prevent ongoing infringement, damages, and an account of profits made from the infringing activity. 7.2 Trade Marks Definition and Duration Under the Trade Marks Act 2002, a trade mark gives its owner exclusive rights to use a mark in connec - tion with the goods or services for which it is reg - istered. Registrable marks include distinctive words, logos, shapes, symbols, colours, sounds and smells, or combinations of these elements. Owners can pre - vent others from using confusingly similar marks in relation to the same or similar goods or services. Trade mark protection lasts for ten years and is renewable indefinitely. Registration Process Registration is through IPONZ. Trade marks incor - porating Māori language or symbols are reviewed by a special committee to ensure that use of the mark would not be likely to offend Māori. The Madrid Pro - tocol allows for the international registration of trade marks through a single application, facilitating global protection. Enforcement and Remedies Comparative advertising using registered trade marks is allowed if it does not unfairly damage the reputa - tion of the mark, and anti-dilution provisions protect well-known trade marks from being used on unrelated goods or services. Enforcement is through the courts, with remedies including injunctions, damages and an account of profits. In New Zealand, registering a com - pany name does not automatically confer the right to use it as a trade mark, and businesses should ensure their company name does not infringe on existing trade marks, to avoid legal conflicts.
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