Some Observations on Trans-Tasman Trade Mark Law

One of the peculiarities of the ever closer economic relationship between Australia and New Zealand is the dissimilarity of the intellectual property laws, at least in matters of detail. The legislation that protects trade marks is no exception. New Zealand's Trade Marks Act 2002 is largely based upon the United Kingdom model, which is in turn influenced by European law. That can make for challenges when interpreting key sections. It also means that the New Zealand legislation contains provisions not seen in the Australian law. New Zealand has, too, some truly indigenous provisions such as a prohibition on culturally offensive signs. The Australian Act follows its own distinctive structure and wording, although both countries share a British heritage. The aim of this article is to discuss particular areas of interest in trade mark law in order to draw out some contrasts between the two countries. Three broad aspects are covered: trade mark "use", infringement and registerability. Hard conclusions are elusive, with a number of provisions remaining untouched by case law. But whilst on occasion there may be room for disagreement, it seems that in general the respective judges have a similar approach to the issues, and despite the, sometimes stark, differences in the provisions, much the same legal result is likely to arise in each jurisdiction.