Misappropriation and Misuse: An Outline of Existing Legal Principles and Mechanisms - Presentation

Slide 1: "Māori Meeting House, Hamilton, New Zealand" ©2001 Photo Elroy Christenson

Slide 2: Copyright Act 1994

• Duration (life + 50 years)
• Originality
• Designs are also protected by copyright and if more than 50 reproductions are made have an equivalent duration to the Designs Act

Slide 3: Designs Act 1953

• Copyright or design?
• Not an easy answer- case by case basis
• Cost may be a factor

Slide 4: Trade Marks, Passing Off and the Fair Trading Act 1986

• Trade marks are potentially indefinite in their protection (need to be renewed) but more limited in the scope of what is protected.
• Passing off and the FTA require a misrepresentation, which is not necessarily the same as misappropriation or misuse.

Slide 5: Third Party Trade Marks as a Violation of Indigenous Cultural Property

• Not a right to ownership of traditional knowledge but it can come close to that.
• Might be difficult, or indeed inappropriate, to determine who "owns" TK.
• Because it is a right to prevent registration "ownership" is more flexible.

Slide 6: Revoked Trade Marks

Slide 7: A Trade Mark with Māori Consent

Slide 8: Absolute Ground for Refusing Registration

The Commissioner must not register a trade mark or part of a trade mark if the Commissioner considers its use or registration would be likely to offend a significant section of the community, including Māori.

(Trade Marks Act 2002, s17(1)(b) (ii)).

Slide 9: How Is the Ground Applied?

• Advisory Committee

… to advise the Commissioner whether the proposed use or registration of a trade mark that is, or appears to be, derivative of a Māori sign, including text or imagery, is, or is likely to be, offensive to Māori.

(Trade Marks Act 2002, s178)

Slide 10: Three Phrases

• "likely to offend a significant section of the community, including Māori."
• "is, or is likely to be, offensive to Māori"
• "culturally aggrieved" (s73(1)) grounds for declaring a trade mark invalid.

Slide 11: Patent, Secrets and Breach of Confidence

• Patent involves public disclosure - rationale is the progress of science and technology
• If kept secret then action in breach of confidence may be relevant but it has limitations of its own.
• Breach of confidence relevant to enforcing a confidentiality agreement.

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