New
Zealand - Intellectual Property Reforms
There are
number of intellectual property law reforms either proposed or enacted
by the New Zealand government. The proposed new laws will
work their way over the next 12 months through the legislative process
and could possibly be enacted by the end of the year.
Trade
Marks Amendments Act 2005:
With effect
from December 15, 2005, the new Amendment has made two significant
changes to the Trade Mark Act 2002. The Trade Mark Act 1953
which stated that the trade mark applicant had to be the proprietor
which provision was used in case of disputed ownership. The
provision was omitted from the 2002 Act, but a new ban on registration
was included where an application is made in bad faith means dishonesty
or misrepresentation in an application requiring investigation.
The 2005 Amendment has re-introduced the proprietor requirement,
but has used the term owner instead of proprietor in the context
of an unregistered trade mark, the person who owns all of the rights
in the mark.
Revocation
based on non-use:
The 2005
Amendment has attempted to clarify the non-use provisions, particularly
the transitional provisions under the 2002 Act. Under the
Amendment of 2005, a trade mark registration may be revoked for
non-use on two grounds: (i) Up to the date one month before the
application for revocation is made, if non-use occured continuously
for three years and (ii) the use of trade mark has been suspended
for an uninterrupted period of three years. A registration
cannot be revoked under either ground if use of the trade mark started
before the application for revocation is made. With regard
to transitional provisions, they were designed in such a way that
a trade mark owner who achieved registration under 1953 Act when
the non use period was five years would not be penalized when the
non-used period became three years.
Draft
Patents Bill:
The following
proposals suggested in the Bill for significant changes to the existing
patents are:
1) The current
1953 legislation was transplanted almost verbatim from the British
Patents Act. The draft Bill is a hybrid of the Australian,
British and American utility guidelines.
2) The novelty
standard for a patent under the Bill changes from local novelty
to absolute novelty. Inventiveness will be evaluated during
examination and applicants will be obliged to disclose the results
of any search by a foreign patent office for a corresponding application
filed outside New Zealand.
3) The Bill
excludes patents for methods of therapeutic, diagnostic and medical
treatment of humans; patents for plant varieties; and for inventions
whose exploitation is contrary to public policy or morality, except
business methods and computer software inventions as per the current
law.
4) At present
there is a three month window to oppose after the application is
accepted but before the patent is granted. The draft Bill
removes such oppositions and replaces them with a more limited re-examination
by the third parties after acceptance and also after the patent
has been granted, but is limited to novelty and inventive step only.
5) under
the draft Bill, the Patents Commissioner may revoke a patent at
any time after grant. The grounds for revocation include prior
publication/use, obviousness, insufficiency, innutility and false
suggestion.
6) In the
draft Bill, the exclusive rights granted to a patent owner have
been broadened to include the exclusive right to: make, sell, hire
or otherwise dispose of a patented product; use or import a patented
product and keep it for the purpose of doing any of the above.
The range of possible infringements is codified to give patent owners
better protection than previously. Unauthorized importation
of a patented invention will be an infringement. The Bill
also establishes a new statutory category of 'contributory infringement'.
A contributory infringer is someone who knowingly supplies the means
for another to infringe a patent.
Draft
Plant Varieties Bill:
A draft
Plant Varieties Bill was introduced under the 2005 Act where an
infringement relationship between an initial variety and an essentially
derived variety was clarified. Under the present law if a
farmer harvests seed from a protected variety and replants those
seeds, the act of replanting is not an infringement. In addition
to it, the Bill provides that regulations may prescribe species
where the growing of farm saved seed of a protecxted variety is
an infringement of the owner's right where there is agreement between
growers and breeders of that species.
With
regard to geographical indications Bill 2005, the new Act provides
relationship between trade marks and geographical indication is
dealt with on a first-in-time, first-in-right basis. The Bill
also includes limitations and exceptions to protection as prescribed
in the TRIP's Agreement.
For any
queries relating to our services and costs, please feel free to
contact us at info@iprfirm.com.
IPR
FIRM.COM - Online IPR Law Firm, India – Trade Marks, Copyright Registration,
Delhi, India
| | |
(c) IPR Firm, 2007.
| 
