Executive Summary
2. New Zealand's system for protecting trade mark and copyright owners from the
importation of counterfeit or pirated goods that infringe their rights is prescribed
in the Trade Marks Act 2002 and the Copyright Act 1994. Acting under this legislation,
the New Zealand Customs Service (Customs) is intercepting increasing volumes of
imported counterfeit and pirated goods which is tying up a significant amount of
Customs' resources. If well targeted prosecutions were taken against the importation
of counterfeit and pirated goods, this would effectively increase the level of deterrence.
3. In August 2006 Cabinet agreed that the National Enforcement Unit (NEU) of
the Ministry of Economic Development (MED) should be able to prosecute against all
trade mark and copyright offences defined in the Trade Marks and Copyright Acts
[CAB Min (06) 32/12]. This includes offences related to the importation of counterfeit
and pirated goods. The Police is also able to take trade marks and copyright prosecutions,
but rarely does so.
4. From government's perspective enabling Customs, in addition to the Police
and the NEU, to take prosecutions related to imported counterfeit or pirated goods
would be an efficient and effective use of available resources. In fulfilling its
existing responsibilities, Customs is frequently in possession of information and
evidence to take a prosecution. Enabling Customs to take prosecutions related to
imported counterfeit and pirated goods would provide it with an additional tool
to manage its existing trade mark and copyright responsibilities at the border.
It is envisaged that these prosecutions would be funded from within Customs' existing
baseline.
5. To enable Customs to undertake this role, it should have explicit powers to
execute warranted searches, to retain certain goods and documents found during lawful
inspections or searches, to copy information for use as exhibits, and by notice
in writing to require information to be supplied and persons to be interviewed.
Such changes could be incorporated into the Trade Marks (International Treaties
and Enforcement) Amendment Bill before its introduction.
6. Should Customs be given a mandate to take prosecutions related to imported
counterfeit and pirated goods, it is intended that the respective roles of MED and
Customs in trade mark and copyright enforcement would be clarified in a Memorandum
of Understanding between the two agencies.
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