Abstract:
Under s 26(b) of New Zealand's Trade Marks Act 2002 a person who has "honestly" used a trade mark in the marketplace can potentially register it despite the trade mark being identical or confusingly similar to an existing registered trade mark. This provision gives effect to the "honest concurrent use " doctrine. Despite honest concurrent use being a long-standing feature of New Zealand trade mark law, this article explains that there are significant problems with the operation of s 26(b) under the 2002 Act. Moreover, scrutiny over the origin of the honest concurrent use doctrine raises questions over its continued place in a modern registration system. In light of the issues surrounding the operation of s 26(b) and its historical origin, this article proposes and evaluates two models for recalibrating honest concurrent use under the 2002 Act.