Abstract:
The New Zealand Trade Marks Act 2002 represented a significant change in the law. There were a number of new provisions and a plainer drafting style. It was hoped, no doubt, that the law would not only be modernised but made more intelligible. The exclusivity rights given to a trade mark owner through registration serve to safeguard the public from any misrepresentation about trade origin and protect the owner's investment in the mark. But a tension can arise between these rationales, most prominently revealed in defining the extent of the exclusive right. A long-standing defence is that a person does not infringe a registered mark if they do not use a sign "as a trade mark". What does this mean? As a result of the changes in the new legislation the issue is remarkably opaque. Its obscurity symbolises the conflicting justifications for trade mark protection. It is also evidence that the Act is not, after all, a new paradigm in legislative clarity.
