Law relevant to parallel importing
New Zealand is a party to a number of international agreements in the copyright area. The Berne Convention for the Protection of Literary and Artistic Works does not address the issue of parallel imports (New Zealand is a party to the 1928 Rome Revision of the Convention).
As a Member of the World Trade Organisation (WTO), New Zealand is a party to the Agreement on the trade-related Aspects of Intellectual Property Rights 1994 (the TRIPS Agreement). Article 6 of TRIPS states that "for the purposes of dispute settlement under this Agreement, subject to the provisions of Articles 3 and 4, nothing in this Agreement shall be used to address the issue of the exhaustion of intellectual property rights".
Article 6 means that the only obligations under the TRIPS Agreement that can be used by one country to challenge another country's position on parallel importing are those relating to national treatment (Article 3) and most-favoured-nation treatment (Article 4). There are, therefore, no grounds under the TRIPS Agreement for one country to challenge the absence of parallel-importing restrictions in another country.
Other areas of law relevant to parallel imports
Many imported products are subject to multiple intellectual property rights, each of which exists under a different statute. For example, a compact disc player may be subject to:
- Copyright protection: in terms of the packaging, the accompanying explanatory material, and any aspects of the artwork.
- Trade mark protection: in terms of any trade marks affixed to the product or the packaging.
- Patent protection: in terms of the way the device operates; and
- Registered design protection: in relation to visual design features added to the device.
The changes made by the Copyright (Removal of the Prohibition on Parallel Importing) Amendment Act 1998 did not change the potential applicability of other intellectual property statutes to parallel importing activities. For example, some restrictions on parallel importing and related activities may still apply under the Patents Act 1953 or the Designs Act 1953. The Copyright (Parallel Importation of Films and Onus of Proof) Amendment Act 2003 amended the Trade Marks Act 2002 to state that a registered trade mark is not infringed by the use of the trade mark (including use for the purpose of advertising) in relation to goods that have been put on the market anywhere in the world under that trade mark by the owner or with his or her express or implied consent.
There are also a number of other areas of law that can affect commercial dealing in parallel-imported goods (and may also prevent the goods from being brought into the country). These include:
- Health and safety standards.
- General import restrictions imposed by customs import prohibition orders, including goods with misleading or incorrect descriptions.
- The Medicines Act 1981.
- Censorship laws under the Films, Videos and Publications Classification Act 1993.
- The Consumer Guarantees Act 1993.
- The Fair Trading Act 1986; and
- The common law tort of "passing off".