The conclusiveness of trade mark registration: A New Zealand perspective

Abstract

Under trade mark registration systems that operate in British Commonwealth countries around the world, rights to a trade mark can be acquired upon registration. However, like land recording systems which confer title by registration, there is a constant issue about how conclusive trade mark registration (and the Trade Mark Register) is, and ought to be. This issue is particularly acute in trade mark law because traders can acquire protectable rights to a trade mark independently of the registration system by virtue of the use of the trade mark in the marketplace. This article critically examines the conclusiveness of New Zealand’s Trade Marks Register by drawing comparisons with New Zealand’s land registration system. A core notion under New Zealand’s “Torrens” system of land recording is that the “register is everything”. Those who fail to register (subject to limited but important exceptions) lose their claim to ownership of an interest in land. The comparisons between trade mark law and the Torrens system drawn in this article reveal how the development of New Zealand trade mark law has resulted in registration being inconclusive, and title being relatively insecure. From a normative perspective, the comparison with the Torrens system may be instructive in suggesting interventions that would strengthen the security of title to registered trade marks.