New Zealand updates IP legislation

Both the Geographical Indications (Wine and Spirits) Registration Act 2006 and the Evidence Act 2006, were passed by the New Zealand Parliament in late 2006. There are several other pieces of IP-related legislation, including a new bill designed to control ambush marketing, in the pipeline.

The aims of the Geographical Indications (Wine and Spirits) Registration Act 2006 (the GI Act) are to contribute to the development of the wine and spirits industries in New Zealand and to facilitate trade in wine and spirits consistent with the Agreement on Trade-Related Aspects of Intellectual Property Rights. As is obvious from the title of the GI Act, it applies only to wines and spirits.

The Geographical Indications Act 1994 was passed in 1994, but never entered into force. The GI Act replaces and updates the Geographical Indications Act 1994.

A 'geographical indication' (GI) is defined as:

"an indication that identifies a wine or spirit as originating in the territory of a country, or a region or locality in that territory, where a given quality, or reputation, or other characteristic, of the wine or spirit is essentially attributable to its geographical origin."

Prior to the passing of the GI Act, protection was available under Section 9 of the Fair Trading Act, which prohibits misleading and deceptive conduct in the course of trade, and under the tort of passing off. While there is no specific reference to passing off in the GI Act, it specifically provides that a person who contravenes the GI Act also contravenes Section 9 of the Fair Trading Act 1986 and the provisions of the latter act apply accordingly.

The GI Act will come into force in early 2007.

The Evidence Act 2006 was passed in December 2006. It provides privilege in respect of professional legal services for a registered patent attorney obtaining or giving information or advice "concerning intellectual property", and broadens the scope of privilege applicable to advice given by registered patent attorneys.

Under the Evidence Act 2006 'intellectual property' includes confidential information, copyright, designs, GIs, inventions, patents, plant varieties, trademarks and unfair competition, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields. Previously, a client could claim privilege only in relation to advice given by a registered patent attorney in relation to:

"information or advice relating to any patent, design, or trademark, or to any application in respect of a patent, design, or trademark, whether or not the information or advice relates to a question of law."

In particular, the previous law was considered to exclude advice on copyright, the Fair Trading Act and passing off.

Privilege can also be claimed in relation to advice given by lawyers. A 'lawyer' is defined as a "person with a practising certificate".

The Evidence Act 2006 will also come into force in early 2007.

In addition, the New Zealand government is drafting a Major Events Management Bill. The aim of the bill is to help prevent ambush marketing in connection with events, notably sports events. New Zealand is hosting the Rugby World Cup in 2011, co-hosting the Cricket World Cup in 2015 and the World Rowing Championships in 2010, and the bill is intended to provide comfort to official sponsors and to attract other major events in the future.

The bill draws on the recent London Olympic Games and Paralympic Games Act 2006 as well as similar legislation in Australia and South Africa. The bill intends to create 'clean zones', preventing unauthorized advertising around the area where the event is taking place, and also preventing unauthorized parties misrepresenting that they are in some way connected with the event or with a person who is authorized to provide goods or services in connection with that event.

It is anticipated that the bill will become law in New Zealand by the middle of 2007.

Other IP-related changes to legislation include a Patents Bill, a Plant Variety Rights Bill and amendments to the Copyright Act 1994 in relation to digital technology.

Ed Hamilton and Kate Duckworth, Baldwins, Wellington