Maori Television Service Act may be overprotective

The Maori Television Service, created by the Maori Television Service Act 2003, has commenced broadcasting. The act highlights the New Zealand government's commitment to preserving the Maori culture but may have the effect of preventing legitimate use of the descriptive term 'Maori Television' by other parties.

The act contains a provision that specifically prohibits any party from being incorporated or registered under the name Maori Television Service, the Maori equivalent of that name (Te Aratuku Whakaata Irirangi Maori) or any other name resembling those names such "as to be likely to mislead a person".

The Maori Television Service has essentially been created as a commercial enterprise. While it has received significant support from the government, it is surprising for protection of its trademarks to be included in the legislation under which it was created. In particular, it is surprising to have a provision that makes use of those marks by an unauthorized party a criminal offence.

The provision gives rights over and above those that would be provided by a trademark registration under the Trademarks Act 2002. The Maori Television Service has applied to register the trademark MAORI TELEVISION in a number of classes in New Zealand with those applications currently being examined by the Intellectual Property Office (IPO). The period of time those applications have been under examination may indicate that the IPO does not consider the marks to be registrable. Even if the IPO declines to allow those marks to proceed to registration under the Trademarks Act, the Maori Television Service will still be able to prohibit any other party from using the names Maori Television Service, Te Aratuku Whakaata Irirangi Maori or any other similar name by virtue of the Maori Television Service Act.

Perhaps of greatest interest is that any other entity wanting to set up an indigenous television service in New Zealand with a focus on Maori language and culture would appear to be in breach of the act by calling its product 'Maori Television'. In essence, it appears that the provision in the Maori Television Service Act prohibits what in the normal course of events would be legitimate use of the descriptive term 'Maori Television'.

From a practical perspective the prospects of another indigenous television channel being established in New Zealand seem remote. However, if another indigenous television channel is established the meaning of the phrase "as to be likely to mislead a person" in the act may be the subject of close judicial scrutiny to ensure that persons other than the television service are not deprived of any legitimate rights to use the phrase 'Maori Television' in relation to a television service.

Simon Fogarty, AJ Park, Wellington