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First reading Trade Marks Bill

Speech Notes - Hon L Harre

This bill will replace the Trade Marks Act of 1953 and is an essential contribution to the Government's key goal of growing an inclusive and innovative economy for the benefit of all.

The reform of intellectual property legislation is part of the whole of Government approach to meeting our objectives as a Labour-Alliance coalition Government for economic growth.

Trademarks have always been an essential part of New Zealand's intellectual property rights regime. The Trade Marks Act is almost 50 years old. This bill will ensure that the needs of the business community continue to be met and that New Zealand's trademarks legislation is modernised to meet the needs of the 21st century.

Effective intellectual property legislation should meet a number of objectives. First of all, it should provide clarity and certainty for interested parties; rights and penalties for infringement and the processes for registering trademarks should be clearly defined. The amendments that this bill will introduce are designed to define more clearly the scope of rights that are protected by trade marks. The bill works on the presumption that a trade mark may be registered unless it falls within one of the number of clearly specified grounds on which the Commissioner for Trade Marks may refuse registration.

This reduces the level of discretion exercised by the commissioner in the current legislation, and increases certainty for applicants. Secondly, the process that is designed to protect intellectual property rights should be as straightforward, simple and cost-effective as possible, and accordingly, the bill aims to simplify and streamline the procedures for obtaining a trade mark. This streamlining of process goes to the heart of one of the Government's key objectives - that of reducing compliance costs.

The amendments in this bill are a further important step towards enabling business and industry to operate efficiently and at minimum cost. Thirdly, intellectual property rights should be readily enforceable, and penalties for infringement should act as an effective deterrent to the theft of intellectual property.

The Government takes the issue of piracy and counterfeiting very seriously. They are theft, as the videos tell us at the start each time, and the theft of intellectual property undermines creative business endeavour to the detriment of both producers and consumers. The bill therefore contains a number of provisions designed to deal more effectively with infringements of trade mark protection.

Specifically the bill makes it an offence to counterfeit a registered trade mark or falsely apply a registered trade mark to goods and services. It introduces new penalties; it amends the Copyright Act to increase the penalty for copyright infringement from three months to five years. It extends the powers of the customs service to deal with pirated and counterfeit goods in transit, and allows for evidence to be provided by affidavit in order to facilitate the taking of a prosecution.

These amendments are all about strengthening the existing enforcement methods, and therefore the protection of intellectual property under this regime.

However, the bill is not only important to business. It also aims to address some of the concerns that have been expressed by Maori about the need to protect Maori culture and heritage. I should stress at the outset that this bill is not a panacea. It does not, and cannot, be reasonably expected to deal with all the complex and difficult issues that surround the protection of our indigenous cultural heritage. The bill is nevertheless a very positive measure and one of which this Government is very proud.

It will put into law new safeguards for aspects of Maori cultural heritage. Specifically, the bill contains a number of provisions to prevent the inappropriate registration of Maori words and symbols as trade marks, and, in this context, I would remind people that Maori have been incredibly generous with the use of their culture as an identifying feature of New Zealand at home and abroad. It is about time that we recognised their rights to see some protection of their cultural heritage respected through our legislative processes. These measures are the result of extensive consultation with Maori. More importantly they provide a framework for ongoing consultation with Maori on this issue.

In my view they also represent a consensus across this House. The original trade mark review process was, in fact, stopped dead in its tracks by the previous National Government when it realised that it had not sufficiently consulted with Maori. So I applaud the previous National Government for having set us out on the path of getting a Trade Marks Bill before the House that did take into account the issues being raised by Maori, and I am pleased to be able to advance the work that was started under the last Government.

First, the bill provides that the Commissioner of Trade Marks must not register a trade mark if its use or registration would be likely to offend a significant section of the community, including Maori, and this is an absolute ground for refusing to register a trade mark. It modernises the current position that allows for objections on a general and undefined basis of offence to morality.

The bill also requires the Commissioner of Trade Marks to establish an advisory committee that will examine carefully any objections that are raised of this nature to ensure that they are genuine, and to weigh up the level of offensiveness to Maori and whether that justifies a refusal to register the trade mark.

I am aware that Maori have a number of wider concerns over the protection of Maori cultural heritage that are not addressed in this bill. They will be taken further as we develop the new Patents Bill, which, now that we have the report of the Royal Commission on Genetic Modification, can be developed to a final stage. It will also depend very much on the outcome of the claim currently before the Waitangi Tribunal relating to indigenous flora and fauna - the Y262 claim.

Also New Zealanders are working closely with other countries at the World Intellectual Property Organisation to develop appropriate frameworks on traditional knowledge, genetic resources and folklore, in which we will be an active and leading participant.

Again, I think we can be proud as a Parliament that the legislation that we are debating tonight will help other countries to clarify the way that they approach issues around the protection of intellectual knowledge. The Trade Marks Bill is an important piece of legislation. It does not simply provide for updating the existing Act, it represents a new and wider approach to trade marks legislation.

It deals with interests of business and consumers by ensuring that a modern, efficient and cost-effective registration process can be put in place. It does introduce significant penalties and added protections against piracy and counterfeiting of trade marks, and it represents a first step towards addressing issues relating to the protection of Maori cultural heritage. At the conclusion of this debate I will move that the bill be referred to the Commerce Committee.

Ends


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