Geographical Indications Registration Act 2006
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Version as at 1 May 2024
Geographical Indications Registration Act 2006
Public Act |
2006 No 60 |
|
Date of assent |
21 November 2006 |
|
Commencement |
see section 2 |
Act title: amended, on 1 May 2024, by section 21 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Note
The Parliamentary Counsel Office has made editorial and format changes to this version using the powers under subpart 2 of Part 3 of the Legislation Act 2019.
Note 4 at the end of this version provides a list of the amendments included in it.
This Act is administered by the Ministry for Primary Industries (subparts 1 to 3 of Part 5) and the Ministry of Business, Innovation, and Employment (everything else).
Contents
1 Title
This Act is the Geographical Indications Registration Act 2006.
Section 1: amended, on 1 May 2024, by section 21 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
2 Commencement
(1)
This Act comes into force on a date to be appointed by the Governor-General by Order in Council.
(2)
One or more Orders in Council may be made appointing different dates for the commencement of different provisions.
(3)
Any provision of this Act that is not already in force on 1 July 2018 comes into force on that date.
(4)
An order under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
| Legislation Act 2019 requirements for secondary legislation made under this section | ||||
| Publication | PCO must publish it on the legislation website and notify it in the Gazette | LA19 s 69(1)(c) | ||
| Presentation | The Minister must present it to the House of Representatives | LA19 s 114, Sch 1 cl 32(1)(a) | ||
| Disallowance | It may be disallowed by the House of Representatives | LA19 ss 115, 116 | ||
| This note is not part of the Act. | ||||
Section 2(3): the remainder of this Act brought into force, on 27 July 2017, by clause 2 of the Geographical Indications (Wine and Spirits) Registration Act Commencement Order 2017 (LI 2017/145).
Section 2(1): section 62 brought into force, on 14 April 2008, by clause 2 of the Geographical Indications Act 1994 Repeal Order 2008 (SR 2008/64).
Section 2(3): inserted, on 26 November 2016, by section 4 of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 2(4): inserted, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
Part 1 Preliminary provisions
3 Purpose
The purposes of this Act are to—
(a)
contribute to the development and continual growth of, and innovation in, the wine and spirits industries in New Zealand by providing a suitable legal framework for the protection of New Zealand and foreign geographical indications; and
(b)
provide a sound trading and marketing environment that facilitates, rather than creates barriers to, the trade in wine and spirits; and
(c)
protect the interests of consumers of wine and spirits in New Zealand by providing assurance that a wine or spirit using a New Zealand registered or foreign registered geographical indication originates in the territory, region, or locality to which the registered geographical indication relates; and
(d)
facilitate the purposes set out in paragraphs (a), (b), and (c) in a manner consistent with New Zealand’s rights and obligations under the TRIPS Agreement; and
(e)
provide a suitable legal framework for the protection of EU FTA geographical indications in respect of wine, spirits, and other goods in a manner consistent with New Zealand’s rights and obligations under the EU FTA.
Section 3(a): amended, on 1 May 2024, by section 22(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 3(c): replaced, on 26 November 2016, by section 5 of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 3(c): amended, on 1 May 2024, by section 22(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 3(d): inserted, on 26 November 2016, by section 5 of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 3(e): inserted, on 1 May 2024, by section 22(3) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
4 Interpretation
In this Act, unless the context requires otherwise,—
accepted notice, in subpart 4 of Part 5, has the meaning given to it in section 130
bottled means placed or contained in a bottle or other container used for wine or spirits
chief executive,—
(a)
except in subpart 4 of Part 5, means the chief executive of the Ministry that, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of this Act or the relevant part of this Act; and
(b)
in subpart 4 of Part 5, has the meaning given to it in section 130
claimant, in subpart 4 of Part 5, has the meaning given to it in section 130
committee means a geographical indications committee established under section 53
control of Customs, in subpart 4 of Part 5, has the meaning given to it in section 130
country includes a member of the World Trade Organization established by Article 1 of the WTO Agreement
court means the High Court
Customs, in subpart 4 of Part 5, has the meaning given to it in section 130
Customs officer, in subpart 4 of Part 5, has the meaning given to it in section 130
enduring New Zealand geographical indication has the meaning given to it in section 6A
EU means the European Union
EU FTA means the Free Trade Agreement between New Zealand and the European Union done at Brussels on 9 July 2023, as revised or amended from time to time
EU FTA geographical indication has the meaning given to it in section 6(4)
EU FTA registered geographical indication has the meaning given to it in section 7(1)(c)
exporter, in subpart 4 of Part 5, has the meaning given to it in section 130
foreign geographical indication has the meaning given to it in section 6(3)
foreign registered geographical indication has the meaning given to it in section 7(1)(b)
geographical indication has the meaning given to it in section 6(1)
GI officer, in Part 5, has the meaning given to it in section 79
homonymous New Zealand or foreign geographical indication has the meaning given to it in section 19(2)
homonymous or partially homonymous EU FTA geographical indication has the meaning given to it in section 71(2)
importer, in subpart 4 of Part 5, has the meaning given to it in section 130
infringement fee, in relation to an infringement offence, means the infringement fee specified for the offence in the regulations
infringement offence means an offence against section 120 or any other offence identified in this Act as an infringement offence
infringing good, in Part 5, has the meaning given to it in section 79
infringing material, in Part 5, has the meaning given to it in section 79
infringing object, in Part 5, has the meaning given to it in section 79
international agreement means any bilateral or multilateral treaty, convention, or agreement to which New Zealand is a party, and any arrangement between New Zealand and any other country, concerning the protection of geographical indications
issuing officer, in Part 5, has the meaning given to it in section 79
Minister means the Minister who, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of this Act or the relevant part of this Act
Ministry means the Ministry that, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of this Act or the relevant part of this Act
New Zealand Geographic Board Ngā Pou Taunaha o Aotearoa means the New Zealand Geographic Board Ngā Pou Taunaha o Aotearoa continued under section 7(1) of the New Zealand Geographic Board (Ngā Pou Taunaha o Aotearoa) Act 2008
New Zealand geographical indication has the meaning given to it in section 6(2)
New Zealand registered geographical indication has the meaning given to it in section 7(1)(a)
person includes the government of a country, a corporation sole, an incorporated or unincorporated body or person, and any association or combination of individual persons or incorporated or unincorporated persons
prescribed means prescribed by regulations made under section 156
register means the register of registered geographical indications established under section 161
registered geographical indication has the meaning given to it in section 7(1)
registrant, in relation to a registered geographical indication, means the person upon whose application a geographical indication was registered, renewed, or re-registered (as the case may be)
Registrar means the Registrar of Geographical Indications appointed under section 157
regulations means regulations made under section 156
relevant good, in Part 5, has the meaning given to it in section 79
restriction on use, in Part 5, has the meaning given to it in section 79
spirit—
(a)
means a potable alcoholic distillate, including whisky, brandy, rum, gin, and vodka, produced by distillation of fermented liquor derived from food sources, so as to have the taste, aroma, and other characteristics generally attributable to that particular spirit; but
(b)
in the definition of EU FTA geographical indication in section 6(4), has the meaning given to it in Annex 18-A of the EU FTA
Surveyor-General means the Surveyor-General appointed under section 5 of the Cadastral Survey Act 2002
trade means any trade, business, industry, profession, occupation, activity of commerce, or undertaking relating to the supply or acquisition of goods
transliteration means the conversion of characters following the phonetics of the original language or languages of the relevant geographical indication
TRIPS Agreement means the Agreement on Trade-Related Aspects of Intellectual Property set out in Annex 1C to the WTO Agreement
wine—
(a)
has the same meaning as grape wine in section 4(1) of the Wine Act 2003; but
(b)
in the definition of EU FTA geographical indication in section 6(4), has the meaning given to it in Annex 18-A of the EU FTA
working day means a day of the week other than—
(a)
a Saturday, a Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, the Sovereign’s birthday, Te Rā Aro ki a Matariki/Matariki Observance Day, and Labour Day; and
(ab)
if Waitangi Day or Anzac Day falls on a Saturday or a Sunday, the following Monday; and
(b)
the day observed in the appropriate area as the anniversary of the province of which the area forms part; and
(c)
a day in the period beginning with 25 December in any year and,—
(i)
except in section 165, ending with 2 January in the following year; or
(ii)
in section 165, ending with 15 January in the following year
written or in writing, in Part 5, has the meaning given to it in section 79
WTO Agreement means the World Trade Organization Agreement adopted at Marrakesh on 15 April 1994, as revised or amended from time to time.
Section 4 accepted notice: inserted, on 1 May 2024, by section 23(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 chief executive: inserted, on 1 May 2024, by section 23(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 claimant: inserted, on 1 May 2024, by section 23(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 control of Customs: inserted, on 1 May 2024, by section 23(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 Customs: inserted, on 1 May 2024, by section 23(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 Customs officer: inserted, on 1 May 2024, by section 23(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 enduring New Zealand geographical indication: inserted, on 26 November 2016, by section 6(1) of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 4 EU: inserted, on 1 May 2024, by section 23(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 EU FTA: inserted, on 1 May 2024, by section 23(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 EU FTA geographical indication: inserted, on 1 May 2024, by section 23(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 EU FTA registered geographical indication: inserted, on 1 May 2024, by section 23(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 exporter: inserted, on 1 May 2024, by section 23(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 foreign registered geographical indication: amended, on 1 May 2024, by section 23(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 GI officer: inserted, on 1 May 2024, by section 23(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 homonymous geographical indication: repealed, on 1 May 2024, by section 23(3) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 homonymous New Zealand or foreign geographical indication: inserted, on 1 May 2024, by section 23(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 homonymous or partially homonymous EU FTA geographical indication: inserted, on 1 May 2024, by section 23(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 importer: inserted, on 1 May 2024, by section 23(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 infringement fee: inserted, on 1 May 2024, by section 23(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 infringement offence: inserted, on 1 May 2024, by section 23(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 infringing good: inserted, on 1 May 2024, by section 23(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 infringing material: inserted, on 1 May 2024, by section 23(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 infringing object: inserted, on 1 May 2024, by section 23(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 issuing officer: inserted, on 1 May 2024, by section 23(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 Minister: inserted, on 1 May 2024, by section 23(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 Ministry: replaced, on 1 May 2024, by section 23(4) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 New Zealand Geographic Board: repealed, on 26 November 2016, by section 6(2) of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 4 New Zealand Geographic Board Ngā Pou Taunaha o Aotearoa: inserted, on 26 November 2016, by section 6(2) of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 4 New Zealand registered geographical indication: amended, on 1 May 2024, by section 23(5) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 prescribed: amended, on 1 May 2024, by section 23(6) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 register: amended, on 1 May 2024, by section 23(7) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 registrant: inserted, on 26 November 2016, by section 6(1) of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 4 Registrar: amended, on 1 May 2024, by section 23(8) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 Registrar: amended, on 26 November 2016, by section 6(3) of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 4 regulations: inserted, on 1 May 2024, by section 23(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 relevant good: inserted, on 1 May 2024, by section 23(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 restriction on use: inserted, on 1 May 2024, by section 23(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 spirit: replaced, on 1 May 2024, by section 23(9) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 transliteration: inserted, on 1 May 2024, by section 23(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 wine: replaced, on 1 May 2024, by section 23(11) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 working day paragraph (a): replaced, on 12 April 2022, by wehenga 7 o Te Ture mō te Hararei Tūmatanui o te Kāhui o Matariki 2022/section 7 of the Te Ture mō te Hararei Tūmatanui o te Kāhui o Matariki 2022/the Te Kāhui o Matariki Public Holiday Act 2022 (2022 No 14).
Section 4 working day paragraph (ab): inserted, on 1 January 2014, by section 8 of the Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013 (2013 No 19).
Section 4 working day paragraph (c)(i): amended, on 1 May 2024, by section 23(10) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 working day paragraph (c)(ii): amended, on 1 May 2024, by section 23(10) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 4 written or in writing: inserted, on 1 May 2024, by section 23(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
4A Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1 have effect according to their terms.
Section 4A: inserted, on 1 May 2024, by section 24 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
5 Act binds the Crown
This Act binds the Crown.
Part 2 Types of geographical indication
Part 2 heading: replaced, on 1 May 2024, by section 25 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Nature of registered geographical indication[Repealed]
Heading: repealed, on 1 May 2024, by section 26 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
6 Geographical indications
(1)
A geographical indication is an indication that identifies a wine, spirit, or other good (as the case requires) as originating in the territory of a country, or a region or locality in that territory, where a given quality, or reputation, or other characteristic, of the wine, spirit, or other good is essentially attributable to its geographical origin.
(2)
A New Zealand geographical indication means a geographical indication that identifies a wine or spirit as originating in New Zealand.
(3)
A foreign geographical indication—
(a)
means a geographical indication that identifies a wine or spirit as originating in a country other than New Zealand; but
(b)
does not include an EU FTA geographical indication unless the EU FTA geographical indication is also listed in Part 2 of the register.
(4)
An EU FTA geographical indication means a geographical indication that—
(a)
identifies a wine, spirit, or other good as originating in a country that is a member state of the EU; and
(b)
is listed in Section A of Annex 18-B of the EU FTA.
Section 6 heading: replaced, on 1 May 2024, by section 27(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 6(1): amended, on 1 May 2024, by section 27(2)(a) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 6(1): amended, on 1 May 2024, by section 27(2)(b) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 6(3): replaced, on 1 May 2024, by section 27(3) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 6(4): inserted, on 1 May 2024, by section 27(3) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
6A Enduring New Zealand geographical indications
(1)
An enduring New Zealand geographical indication—
(a)
is one of the following New Zealand geographical indications:
(i)
New Zealand:
(ii)
North Island:
(iii)
South Island; and
(b)
must be treated as—
(i)
a New Zealand registered geographical indication under section 8; and
(ii)
being registered on and from the date of commencement of this section; and
(c)
is to be recorded in Part 1 of the register.
(2)
An enduring New Zealand geographical indication is not subject to the following provisions:
(a)
section 9A (duration of registration):
(b)
section 45 (removal from register):
(c)
section 46 (alteration of register).
Section 6A: inserted, on 26 November 2016, by section 7 of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 6A heading: replaced, on 1 May 2024, by section 28(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 6A(1)(b)(i): amended, on 1 May 2024, by section 28(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
7 Registered geographical indications
(1)
A registered geographical indication is—
(a)
a New Zealand geographical indication registered under section 8 (a New Zealand registered geographical indication); or
(b)
a foreign geographical indication registered under section 8 (a foreign registered geographical indication); or
(c)
an EU FTA geographical indication registered under section 57 or clause 2 of Schedule 1 (an EU FTA registered geographical indication).
(2)
Subsection (1)(a) and (b) is subject to section 47D.
Section 7: replaced, on 1 May 2024, by section 29 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
7A Registration as both foreign and EU FTA geographical indication
(1)
A foreign registered geographical indication that is then registered as an EU FTA registered geographical indication does not lose its registration as a foreign registered geographical indication because of its registration as an EU FTA registered geographical indication.
(2)
An EU FTA registered geographical indication that is then registered as a foreign registered geographical indication does not lose its registration as an EU FTA registered geographical indication because of its registration as a foreign registered geographical indication.
Section 7A: inserted, on 1 May 2024, by section 29 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Part 3 New Zealand and foreign geographical indications
Part 3 heading: inserted, on 1 May 2024, by section 30 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Registration
8 Registration of New Zealand or foreign geographical indication
(1)
The Registrar registers a New Zealand or foreign geographical indication by entering it in the register.
(2)
The Registrar may register a New Zealand or foreign geographical indication except in the cases set out in sections 10 to 17.
Section 8 heading: amended, on 1 May 2024, by section 31(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 8(1): amended, on 1 May 2024, by section 31(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 8(2): amended, on 1 May 2024, by section 31(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 8(2): amended, on 26 November 2016, by section 8 of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
9 Date of registration of New Zealand or foreign geographical indication
(1)
A New Zealand registered or foreign registered geographical indication is deemed to be registered on and from the date of the application for registration.
(2)
The Registrar must not register a New Zealand or foreign geographical indication until 6 months after the date of the application for registration.
(3)
The date of the application for registration is the date when the Registrar receives the application.
Section 9 heading: amended, on 1 May 2024, by section 32(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 9(1): amended, on 1 May 2024, by section 32(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 9(2): amended, on 1 May 2024, by section 32(3) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Duration of registration
Heading: inserted, on 26 November 2016, by section 9 of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
9A Duration of registration of New Zealand or foreign geographical indication
(1)
The registration of a New Zealand or foreign geographical indication is effective for a period of 5 years commencing on the deemed date of registration.
(2)
The registration of a New Zealand or foreign geographical indication may be renewed under section 47A.
(3)
This section does not affect a New Zealand or foreign geographical indication that ceases to be registered before the expiry of the 5-year period referred to in subsection (1).
Compare: 2002 No 49 s 57
Section 9A: inserted, on 26 November 2016, by section 9 of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 9A heading: amended, on 1 May 2024, by section 33(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 9A(1): amended, on 1 May 2024, by section 33(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 9A(2): amended, on 1 May 2024, by section 33(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 9A(3): amended, on 1 May 2024, by section 33(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Restrictions on registration
10 New Zealand or foreign geographical indication identical to registered geographical indication
The Registrar must not register—
(a)
a New Zealand or foreign geographical indication for a wine that is identical to a registered geographical indication for a wine in respect of the same or a similar geographical origin:
(b)
a New Zealand or foreign geographical indication for a spirit that is identical to a registered geographical indication for a spirit in respect of the same or a similar geographical origin.
Section 10 heading: amended, on 1 May 2024, by section 34(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 10(a): amended, on 1 May 2024, by section 34(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 10(b): amended, on 1 May 2024, by section 34(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
11 New Zealand or foreign geographical indication identical to customary name of grape variety
The Registrar must not register a New Zealand or foreign geographical indication if it is identical to the customary name of a grape variety existing in New Zealand on 1 January 1995.
Section 11 heading: amended, on 1 May 2024, by section 35(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 11: amended, on 1 May 2024, by section 35(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
12 New Zealand or foreign geographical indication identical to common name for wine or spirit
The Registrar must not register—
(a)
a New Zealand or foreign geographical indication for a wine if it is identical to the term customary in common language as the common name of a wine in New Zealand:
(b)
a New Zealand or foreign geographical indication for a spirit if it is identical to the term customary in common language as the common name of a spirit in New Zealand.
Section 12 heading: amended, on 1 May 2024, by section 36(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 12(a): amended, on 1 May 2024, by section 36(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 12(b): amended, on 1 May 2024, by section 36(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
13 Foreign geographical indication no longer protected, or fallen into disuse, in country of origin
The Registrar must not register a foreign geographical indication that is not, or has ceased to be, protected in its country of origin or that has fallen into disuse in that country.
Section 13 heading: amended, on 1 May 2024, by section 37 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
13A No registration of New Zealand or foreign geographical indication if use or registration likely to be offensive
The Registrar must not register a New Zealand or foreign geographical indication if its use in relation to wine or spirits or its registration would, in the opinion of the Registrar, be likely to offend a significant section of the community, including Māori.
Compare: 2002 No 49 s 17(1)(c)
Section 13A: inserted, on 26 November 2016, by section 10 of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 13A heading: amended, on 1 May 2024, by section 38(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 13A: amended, on 1 May 2024, by section 38(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
14 No registration of New Zealand or foreign geographical indication if identical to trade mark for identical goods or services
(1)
The Registrar must not register a New Zealand or foreign geographical indication if it is identical to a trade mark and the trade mark is registered in New Zealand in respect of identical goods or services.
(2)
The Registrar must not register a New Zealand or foreign geographical indication if—
(a)
it is identical to a trade mark; and
(b)
the owner of the trade mark has in good faith applied for the registration in New Zealand of the trade mark in respect of identical goods or services; and
(c)
the trade mark’s deemed date of registration (as defined in section 5 of the Trade Marks Act 2002), if the trade mark were to be registered, is earlier than the date of the application for registration of the geographical indication.
(3)
The Registrar must not register a New Zealand or foreign geographical indication if it is identical to a trade mark and rights to the trade mark have been acquired through use in New Zealand in good faith in respect of identical goods or services.
Section 14 heading: amended, on 1 May 2024, by section 39(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 14(1): amended, on 1 May 2024, by section 39(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 14(2): amended, on 1 May 2024, by section 39(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 14(3): amended, on 1 May 2024, by section 39(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
15 No registration of New Zealand or foreign geographical indication if identical to trade mark for similar goods or services
(1)
The Registrar must not register a New Zealand or foreign geographical indication if—
(a)
it is identical to a trade mark; and
(b)
the trade mark is registered in New Zealand in respect of similar goods or services; and
(c)
its use is likely to deceive or confuse.
(2)
The Registrar must not register a New Zealand or foreign geographical indication if—
(a)
it is identical to a trade mark; and
(b)
the owner of the trade mark has in good faith applied for the registration in New Zealand of the trade mark in respect of similar goods or services; and
(c)
the trade mark’s deemed date of registration (as defined in section 5 of the Trade Marks Act 2002), if the trade mark were to be registered, is earlier than the date of the application for registration of the geographical indication; and
(d)
its use is likely to deceive or confuse.
(3)
The Registrar must not register a New Zealand or foreign geographical indication if—
(a)
it is identical to a trade mark; and
(b)
rights to the trade mark have been acquired through use in New Zealand in good faith in respect of similar goods or services; and
(c)
its use is likely to deceive or confuse.
Section 15 heading: amended, on 1 May 2024, by section 40(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 15(1): amended, on 1 May 2024, by section 40(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 15(2): amended, on 1 May 2024, by section 40(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 15(3): amended, on 1 May 2024, by section 40(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
16 No registration of New Zealand or foreign geographical indication if similar to trade mark for identical goods or services
(1)
The Registrar must not register a New Zealand or foreign geographical indication if—
(a)
it is similar to a trade mark; and
(b)
the trade mark is registered in New Zealand in respect of identical goods or services; and
(c)
its use is likely to deceive or confuse.
(2)
The Registrar must not register a New Zealand or foreign geographical indication if—
(a)
it is similar to a trade mark; and
(b)
the owner of the trade mark has in good faith applied for the registration in New Zealand of the trade mark in respect of identical goods or services; and
(c)
the trade mark’s deemed date of registration (as defined in section 5 of the Trade Marks Act 2002), if the trade mark were to be registered, is earlier than the date of the application for registration of the geographical indication; and
(d)
its use is likely to deceive or confuse.
(3)
The Registrar must not register a New Zealand or foreign geographical indication if—
(a)
it is similar to a trade mark; and
(b)
rights to the trade mark have been acquired through use in New Zealand in good faith in respect of identical goods or services; and
(c)
its use is likely to deceive or confuse.
Section 16 heading: amended, on 1 May 2024, by section 41(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 16(1): amended, on 1 May 2024, by section 41(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 16(2): amended, on 1 May 2024, by section 41(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 16(3): amended, on 1 May 2024, by section 41(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
17 No registration of New Zealand or foreign geographical indication if similar to trade mark for similar goods or services
(1)
The Registrar must not register a New Zealand or foreign geographical indication if—
(a)
it is similar to a trade mark; and
(b)
the trade mark is registered in New Zealand in respect of similar goods or services; and
(c)
its use is likely to deceive or confuse.
(2)
The Registrar must not register a New Zealand or foreign geographical indication if—
(a)
it is similar to a trade mark; and
(b)
the owner of the trade mark has in good faith applied for the registration in New Zealand of the trade mark in respect of similar goods or services; and
(c)
the trade mark’s deemed date of registration (as defined in section 5 of the Trade Marks Act 2002), if the trade mark were to be registered, is earlier than the date of the application for registration of the geographical indication; and
(d)
its use is likely to deceive or confuse.
(3)
The Registrar must not register a New Zealand or foreign geographical indication if—
(a)
it is similar to a trade mark; and
(b)
rights to the trade mark have been acquired through use in New Zealand in good faith in respect of similar goods or services; and
(c)
its use is likely to deceive or confuse.
Section 17 heading: amended, on 1 May 2024, by section 42(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 17(1): amended, on 1 May 2024, by section 42(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 17(2): amended, on 1 May 2024, by section 42(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 17(3): amended, on 1 May 2024, by section 42(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
17A No registration of New Zealand or foreign geographical indication if identical or similar to well-known trade mark that indicates connection
The Registrar must not register a New Zealand or foreign geographical indication if—
(a)
it is identical or similar to a trade mark that is well known in New Zealand; and
(b)
the trade mark is registered in New Zealand in respect of goods that are neither identical nor similar to the good to which the New Zealand or foreign geographical indication relates; and
(c)
the use of the geographical indication in respect of a good is likely to indicate a connection to the owner of the trade mark; and
(d)
the interests of the trade mark owner are likely to be damaged by the use of the geographical indication; and
(e)
the trade mark’s deemed date of registration (as defined in section 5 of the Trade Marks Act 2002) is earlier than the date of the application for registration of the geographical indication.
Compare: EU FTA art 18.33.3(b)
Section 17A: inserted, on 1 May 2024, by section 43 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
18 When restrictions in sections 14 to 17A do not apply
(1)
The restrictions in sections 14 to 17A do not apply, and the Registrar may register a New Zealand or foreign geographical indication that is identical or confusingly similar to a trade mark, if—
(a)
the owner of the trade mark has consented to its registration as a geographical indication; or
(b)
the Registrar considers that the geographical indication may co-exist with the trade mark.
(2)
In making a decision under subsection (1)(b), the Registrar must have regard to the following factors:
(a)
the geographical indication’s history of use in good faith in New Zealand:
(b)
recognition of the geographical indication in New Zealand as a geographical indication:
(c)
the legitimate interests of the owner of the trade mark and of third parties:
(d)
any other relevant factors.
Section 18 heading: replaced, on 1 May 2024, by section 44(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 18(1): amended, on 1 May 2024, by section 44(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 18(1): amended, on 1 May 2024, by section 44(3) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Registration of homonymous New Zealand or foreign geographical indication
Heading: replaced, on 1 May 2024, by section 45 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
19 Registrar may register homonymous New Zealand or foreign geographical indication
(1)
The Registrar may register a homonymous New Zealand or foreign geographical indication under section 8.
(2)
A homonymous New Zealand or foreign geographical indication is—
(a)
a New Zealand or foreign geographical indication for a wine that has the same spelling as, or sounds the same as,—
(i)
a New Zealand registered or foreign registered geographical indication for a wine having a different geographical origin; or
(ii)
a New Zealand or foreign geographical indication for a wine having a different geographical origin for which an application for registration under section 36 has been made; or
(b)
a New Zealand or foreign geographical indication for a spirit that has the same spelling as, or sounds the same as,—
(i)
a New Zealand registered or foreign registered geographical indication for a spirit having a different geographical origin; or
(ii)
a New Zealand or foreign geographical indication for a spirit having a different geographical origin for which an application for registration under section 36 has been made.
Section 19 heading: amended, on 1 May 2024, by section 46(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 19(1): amended, on 1 May 2024, by section 46(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 19(2): amended, on 1 May 2024, by section 46(3) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 19(2)(a): amended, on 1 May 2024, by section 46(4)(b) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 19(2)(a)(i): amended, on 1 May 2024, by section 46(4)(a) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 19(2)(a)(ii): amended, on 1 May 2024, by section 46(4)(b) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 19(2)(b): amended, on 1 May 2024, by section 46(4)(b) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 19(2)(b)(i): amended, on 1 May 2024, by section 46(4)(a) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 19(2)(b)(ii): amended, on 1 May 2024, by section 46(4)(b) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
20 Registrar may impose conditions when registering homonymous New Zealand or foreign geographical indication
(1)
For the purposes of section 19, the Registrar may register the homonymous New Zealand or foreign geographical indication with conditions, or alter the register under sections 46 and 47 to include conditions for the use of the earlier registered New Zealand or foreign geographical indication, or both.
(2)
In deciding what conditions (if any) to impose under subsection (1), the Registrar must take into account—
(a)
the need for the equitable treatment of the producers of the wines or spirits to which the geographical indications relate; and
(b)
the need to ensure that consumers are not misled.
Section 20 heading: amended, on 1 May 2024, by section 47(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 20(1): amended, on 1 May 2024, by section 47(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Restrictions on use
Heading: replaced, on 1 May 2024, by section 48 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
21 Restriction on use of New Zealand registered geographical indication for wine
A person may use a New Zealand registered geographical indication or indications in trade in New Zealand in relation to a wine only if—
(a)
at least 85% of the wine is obtained from grapes harvested in the place or places of geographical origin or origins to which the New Zealand registered geographical indication or indications relate; and
(ab)
all of the constituent remainder of the wine referred to in paragraph (a) (if any) is obtained from grapes harvested in New Zealand; and
(b)
the New Zealand registered geographical indication or indications are used in accordance with their registration in New Zealand.
Section 21(a): amended, on 26 November 2016, by section 11(1) of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 21(ab): inserted, on 26 November 2016, by section 11(2) of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
22 Restriction on use of foreign registered geographical indication for wine
A person may use a foreign registered geographical indication or indications in trade in New Zealand in relation to a wine only if—
(a)
that wine originated in the place or places of geographical origin or origins to which the foreign registered geographical indication or indications relate; and
(b)
the foreign registered geographical indication or indications are used in accordance with—
(i)
the scope of their protection in their country of origin (including any conditions as to their use imposed by their country of origin); and
(ii)
their registration in New Zealand (including any conditions imposed by the Registrar).
Section 22(a): amended, on 26 November 2016, by section 12(1) of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 22(b): replaced, on 26 November 2016, by section 12(2) of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
23 Restriction on use of New Zealand registered geographical indication for spirit
A person may use a New Zealand registered geographical indication or indications in trade in New Zealand in relation to a spirit only if—
(a)
that spirit originated in the place of geographical origin to which the registered geographical indication or indications relate; and
(b)
the New Zealand registered geographical indication or indications are used in accordance with their registration in New Zealand.
Section 23(a): amended, on 26 November 2016, by section 13 of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
24 Restriction on use of foreign registered geographical indication for spirit
A person may use a foreign registered geographical indication or indications in trade in New Zealand in relation to a spirit only if—
(a)
that spirit originated in the place or places of geographical origin or origins to which the foreign registered geographical indication or indications relate; and
(b)
the foreign registered geographical indication or indications are used in accordance with—
(i)
the scope of their protection in their country of origin (including any conditions as to their use imposed by their country of origin); and
(ii)
their registration in New Zealand (including any conditions imposed by the Registrar).
Section 24(a): amended, on 26 November 2016, by section 14(1) of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 24(b): replaced, on 26 November 2016, by section 14(2) of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
25 Additional rules relating to restrictions on use of New Zealand registered or foreign registered geographical indication
(1)
The restrictions in sections 21 to 24 on the use of a New Zealand registered or foreign registered geographical indication apply whether or not—
(a)
the true place of origin of the wine or spirit is indicated; or
(b)
the registered geographical indication is used in translation or transliteration; or
(c)
the use of the registered geographical indication is accompanied by any of the words “kind”
, “type”
, “style”
, “imitation”
, or any similar word or expression.
(2)
Despite subsection (1)(b), the restrictions in sections 21 to 24 do not apply to a translated term if evidence is provided that shows there is no link between the geographical indication and the translated term.
Section 25 heading: amended, on 1 May 2024, by section 49(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 25(1): amended, on 1 May 2024, by section 49(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 25(1)(a): amended, on 26 November 2016, by section 15 of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 25(1)(b): amended, on 1 May 2024, by section 49(3) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 25(2): inserted, on 1 May 2024, by section 49(4) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
26 Use of certain information not use of registered New Zealand registered or foreign registered geographical indication
For the purposes of sections 21 to 25, the use by a person (A) of any or all of the following information, in the course of trade and not in such a manner as to mislead the public, does not of itself constitute the use of a New Zealand registered or foreign registered geographical indication in relation to a wine or spirit:
(a)
A’s name or the name of A’s predecessor in business:
(b)
a statement indicating the address where the wine or spirit was produced or bottled.
Section 26 heading: amended, on 1 May 2024, by section 50(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 26: amended, on 1 May 2024, by section 50(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
When restrictions on use do not apply
Heading: replaced, on 1 May 2024, by section 51 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
27 Wine or spirit never in New Zealand or in transit only
[Repealed]Section 27: repealed, on 1 May 2024, by section 52 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
28 Bottling pre-dating registration of New Zealand registered or foreign registered geographical indication
The restrictions on the use of a New Zealand registered or foreign registered geographical indication in sections 21 to 24 do not apply in respect of a wine or spirit that was bottled or was being bottled before the registered geographical indication relating to the wine or spirit was registered under this Act.
Section 28 heading: amended, on 1 May 2024, by section 53(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 28: amended, on 1 May 2024, by section 53(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
29 Continuous use
(1)
The restrictions in sections 21 to 24 on the use of a New Zealand registered or foreign registered geographical indication do not apply in respect of the continued and similar use by any New Zealand person or entity of a term that is a New Zealand registered or foreign registered geographical indication (a term), in relation to a wine or spirit in New Zealand, if—
(a)
that person or entity—
(i)
is using the term in trade; and
(ii)
has used the term in trade in a continuous manner at least from 15 April 1984; or
(b)
that person or entity—
(i)
is using the term in trade; and
(ii)
has used the term in trade in a continuous manner in good faith since before 15 April 1994.
(1A)
The restrictions in sections 21 to 24 on the use of a New Zealand registered or foreign registered geographical indication do not apply in respect of the continued and similar use by any New Zealand person or entity of a term, in relation to a wine or spirit in New Zealand, if that person or entity—
(a)
is using the term in trade; and
(b)
has used the term in trade in a continuous manner since acquiring the right to trade in a wine or spirit to which the exemption in subsection (1) applies.
(2)
In subsections (1) and (1A), New Zealand person or entity includes—
(a)
the Government of New Zealand:
(b)
a New Zealand citizen:
(c)
in the case of a natural person, a person who is ordinarily resident or domiciled in New Zealand:
(d)
a body corporate established by or under New Zealand law:
(e)
an unincorporated association established in New Zealand:
(f)
an association of any of the persons or entities in paragraphs (a) to (e).
Compare: TRIPS Agreement art 24(4)
Section 29(1): replaced, on 26 November 2016, by section 16(1) of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 29(1): amended, on 1 May 2024, by section 54 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 29(1A): inserted, on 26 November 2016, by section 16(1) of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 29(1A): amended, on 1 May 2024, by section 54 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 29(2): amended, on 26 November 2016, by section 16(2) of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 29 compare note: inserted, on 26 November 2016, by section 16(3) of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
30 Trade mark pre-dating registration of New Zealand registered or foreign registered geographical indication
(1)
The restrictions on the use of a New Zealand registered or foreign registered geographical indication in sections 21 to 24 do not apply in respect of the use of a trade mark if, before the effective date,—
(a)
the trade mark has been registered in New Zealand; or
(b)
registration of the trade mark in New Zealand has been applied for in good faith; or
(c)
rights to the trade mark have been acquired by use in New Zealand in good faith.
(2)
In subsection (1), effective date means the later of 1 January 1995 and the date on which protection of the geographical indication in its country of origin began.
Section 30 heading: amended, on 1 May 2024, by section 55(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 30(1): amended, on 1 May 2024, by section 55(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
31 Use of New Zealand registered or foreign registered geographical indication in unregistered trade mark in certain circumstances
(1)
The restrictions on the use of a New Zealand registered or foreign registered geographical indication in sections 21 to 24 cease to apply to the use not in bad faith of a New Zealand registered or foreign registered geographical indication in an unregistered trade mark after 5 years after its adverse use became generally known in New Zealand.
(2)
In subsection (1), adverse use means use of a New Zealand registered or foreign registered geographical indication in an unregistered trade mark in contravention of the restrictions contained in sections 21 to 24.
Section 31 heading: replaced, on 1 May 2024, by section 56(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 31(1): amended, on 1 May 2024, by section 56(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 31(2): amended, on 1 May 2024, by section 56(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
32 Unregistered New Zealand or foreign geographical indication homonymous with New Zealand registered or foreign registered geographical indication
(1)
This section applies when a New Zealand registered or foreign registered geographical indication and an unregistered New Zealand or unregistered foreign geographical indication are homonymous.
(2)
The restrictions on the use of a New Zealand registered or foreign registered geographical indication in sections 21 to 24 do not apply to the use of an unregistered New Zealand or unregistered foreign geographical indication for a wine or spirit that originates in the place of geographical origin to which the unregistered geographical indication relates.
Section 32 heading: replaced, on 1 May 2024, by section 57(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 32(1): amended, on 1 May 2024, by section 57(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 32(1): amended, on 1 May 2024, by section 57(3) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 32(2): amended, on 1 May 2024, by section 57(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 32(2): amended, on 1 May 2024, by section 57(3) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 32(2): amended, on 26 November 2016, by section 17 of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
32A Use of words “New Zealand”
to denote origin
Despite sections 21 and 23, the use of the words “New Zealand”
in relation to wine or spirits is not to be treated as use of the enduring New Zealand geographical indication “New Zealand” if the words are used—
(a)
to comply with other laws or regulations to denote the country of origin; and
(b)
in the course of trade and not in such a manner as to mislead the public.
Section 32A: inserted, on 26 November 2016, by section 18 of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Effect of breach of restriction[Repealed]
Heading: repealed, on 1 May 2024, by section 58 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
33 Breach of restriction on use of registered geographical indication is breach of Fair Trading Act 1986
[Repealed]Section 33: repealed, on 1 May 2024, by section 58 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Registrar[Repealed]
Heading: repealed, on 1 May 2024, by section 58 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
34 Registrar
[Repealed]Section 34: repealed, on 1 May 2024, by section 58 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
35 Registrar’s seal
[Repealed]Section 35: repealed, on 1 May 2024, by section 58 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
35A Power of Registrar to delegate
[Repealed]Section 35A: repealed, on 1 May 2024, by section 58 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Process of registration
36 Interested person may apply for registration of New Zealand or foreign geographical indication
An interested person may apply in the prescribed form and on payment of the prescribed fee for the registration of a New Zealand or foreign geographical indication.
Section 36 heading: amended, on 1 May 2024, by section 59(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 36: amended, on 1 May 2024, by section 59(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
36A Registrar may amend application for registration of New Zealand or foreign geographical indication to substitute applicant
(1)
The Registrar may, on the application of an interested person (A), amend a specified application made by another interested person (B) for registration of a New Zealand or foreign geographical indication—
(a)
by removing B’s name and address; and
(b)
by entering A’s name and address as the substitute applicant.
(2)
The Registrar may exercise the powers under subsection (1) only—
(a)
if—
(i)
B consents to A being the substitute applicant; or
(ii)
B has died or ceased to exist; and
(b)
if the application is made in accordance with regulations.
Section 36A: inserted, on 26 November 2016, by section 22 of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 36A heading: amended, on 1 May 2024, by section 60(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 36A(1): amended, on 1 May 2024, by section 60(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 36A(2)(b): amended, on 1 May 2024, by section 60(3) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
36B Registrar must give public notice of accepted application for registration of New Zealand or foreign geographical indication
(1)
The Registrar must give public notice of an application for registration of a New Zealand or foreign geographical indication that the Registrar has accepted.
(2)
The public notice must be given in the format, manner, and frequency that the Registrar thinks appropriate.
Compare: 2002 No 49 s 46; SR 2003/187 r 161
Section 36B: inserted, on 26 November 2016, by section 22 of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 36B heading: amended, on 1 May 2024, by section 61(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 36B(1): amended, on 1 May 2024, by section 61(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
36C Interested person may oppose accepted application for registration of New Zealand or foreign geographical indication
An interested person may, in accordance with any prescribed requirements, oppose an application for registration of a New Zealand or foreign geographical indication that the Registrar has accepted.
Compare: 2002 No 49 s 47; 2013 No 68 s 92
Section 36C: inserted, on 26 November 2016, by section 22 of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 36C heading: amended, on 1 May 2024, by section 62(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 36C: amended, on 1 May 2024, by section 62(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
37 Registrar must deal with application for registration of New Zealand or foreign geographical indication according to prescribed procedure
(1)
The Registrar must deal with the application for registration of a New Zealand or foreign geographical indication according to the procedure prescribed by regulations.
(2)
Those regulations may include regulations for—
(a)
the acceptance or rejection of the application:
(b)
opposition, and determination of opposition, to an accepted application:
(c)
registration:
(d)
any other steps to be taken in dealing with the application.
Section 37 heading: amended, on 1 May 2024, by section 63(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 37(1): amended, on 1 May 2024, by section 63(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 37(1): amended, on 1 May 2024, by section 63(3) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
38 Priority
(1)
The first application for the registration of a New Zealand or foreign geographical indication received by the Registrar has priority over any subsequent application for registration of an identical geographical indication—
(a)
in respect of the same good (that is, wine or spirit); and
(b)
having the same or a similar geographical origin.
(2)
The Registrar must reject any subsequent application received before the Registrar has accepted or rejected the first application.
Section 38(1): amended, on 1 May 2024, by section 64 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
39 Registrar may obtain advice and consult
[Repealed]Section 39: repealed, on 1 May 2024, by section 65 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
39A Function of advisory committee appointed under Trade Marks Act 2002
[Repealed]Section 39A: repealed, on 1 May 2024, by section 65 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
40 Hearing before exercise of Registrar’s discretion
[Repealed]Section 40: repealed, on 1 May 2024, by section 65 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
41 Conditions of use of New Zealand registered or foreign registered geographical indication
The Registrar may register a New Zealand or foreign geographical indication with conditions as the Registrar thinks fit, including conditions on the use of the geographical indication.
Section 41 heading: amended, on 1 May 2024, by section 66(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 41: amended, on 1 May 2024, by section 66(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Register of registered geographical indications[Repealed]
Heading: repealed, on 1 May 2024, by section 67 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
42 Register
[Repealed]Section 42: repealed, on 1 May 2024, by section 67 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
43 Public access to register
[Repealed]Section 43: repealed, on 1 May 2024, by section 67 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
44 Registrar may correct obvious errors or omissions
[Repealed]Section 44: repealed, on 1 May 2024, by section 67 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Removals from and alterations to register
Heading: inserted, on 1 May 2024, by section 68 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
45 Removal of New Zealand registered or foreign registered geographical indication from register
(1)
The Registrar or the court may remove a New Zealand registered or foreign registered geographical indication from the register if satisfied that any of the following grounds exist:
(a)
in the case of a foreign geographical indication, it is not, or has ceased to be, protected in its country of origin:
(b)
it has fallen into disuse in its country of origin:
(c)
it should not have been registered because it did not meet the requirements of the definition of a geographical indication in section 6(1):
(d)
it should not have been registered because it fell under 1 or more of the restrictions in sections 10 to 17:
(e)
it has become a term customary in common language as the common name for a wine or spirit in New Zealand.
(2)
The Registrar may remove a New Zealand registered or foreign registered geographical indication under subsection (1) on the Registrar’s own initiative, or on the application of any interested person.
(2A)
The court may remove a New Zealand registered or foreign registered geographical indication under subsection (1) on the application of any interested person.
(3)
The Registrar or the court may refuse an application for removal that in the Registrar’s opinion is vexatious or frivolous.
(4)
The Registrar must remove a New Zealand registered or foreign registered geographical indication from the register when required to do so under section 47C(2).
Section 45 heading: amended, on 1 May 2024, by section 69(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 45(1): amended, on 1 May 2024, by section 69(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 45(1)(d): amended, on 26 November 2016, by section 26(1) of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 45(2): amended, on 1 May 2024, by section 69(3) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 45(2): amended, on 1 May 2024, by section 69(4) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 45(2A): inserted, on 1 May 2024, by section 69(5) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 45(3): amended, on 1 May 2024, by section 69(6) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 45(4): inserted, on 26 November 2016, by section 26(2) of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 45(4): amended, on 1 May 2024, by section 69(3) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 45(4): amended, on 13 January 2020, by section 43 of the Regulatory Systems (Economic Development) Amendment Act 2019 (2019 No 62).
45A Notice of proposed removal of New Zealand registered or foreign registered geographical indication from register
(1)
If the Registrar proposes on the Registrar’s own initiative to remove a New Zealand registered or foreign registered geographical indication from the register under section 45(1), the Registrar must—
(a)
notify the registrant of the grounds of the proposed removal; and
(b)
give public notice of the proposed removal.
(2)
If the Registrar receives an application to remove a New Zealand registered or foreign registered geographical indication from the register, the Registrar must,—
(a)
if the applicant is not the registrant, send a copy of the application to the registrant; and
(b)
give public notice of the proposed removal.
(3)
The public notice must be given in the format, manner, and frequency that the Registrar thinks appropriate.
Section 45A: inserted, on 26 November 2016, by section 27 of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 45A heading: amended, on 1 May 2024, by section 70(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 45A(1): amended, on 1 May 2024, by section 70(2)(a) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 45A(1): amended, on 1 May 2024, by section 70(2)(b) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 45A(1): amended, on 13 January 2020, by section 44 of the Regulatory Systems (Economic Development) Amendment Act 2019 (2019 No 62).
Section 45A(2): amended, on 1 May 2024, by section 70(3) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
45B Interested person may oppose proposed removal
If the Registrar gives notice of the proposed removal of a registered geographical indication under section 45A, an interested person may, in accordance with any prescribed requirements, oppose the proposed removal.
Section 45B: inserted, on 26 November 2016, by section 27 of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
46 Alteration of register
(1)
The Registrar may, on the Registrar’s own initiative or on the application of an interested person, alter a New Zealand registered or foreign registered geographical indication, or the conditions or boundaries relating to a New Zealand registered or foreign registered geographical indication, if the Registrar is satisfied that—
(a)
the alteration is necessary; and
(b)
the alteration will not substantially alter the character of the geographical indication; and
(c)
the alteration is not likely to mislead the public.
(1A)
The Registrar may, on the application of a registrant, alter the registrant’s name or address on the register in relation to a specified New Zealand registered or foreign registered geographical indication.
(1B)
The Registrar may, on the application of an interested person (other than the registrant), alter the register in relation to a specified New Zealand registered or foreign registered geographical indication—
(a)
by removing the registrant’s name and address; and
(b)
by entering the applicant’s name and address as the substitute registrant.
(1C)
The Registrar may exercise the powers under subsection (1B) only—
(a)
if—
(i)
the registrant consents to the interested person being the substitute registrant; or
(ii)
the registrant has died or ceased to exist; and
(b)
if the application is made in accordance with regulations.
(2)
The Registrar may refuse an application for alteration that in the Registrar’s opinion is vexatious or frivolous.
Section 46(1): replaced, on 26 November 2016, by section 28(1) of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 46(1): amended, on 1 May 2024, by section 71(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 46(1): amended, on 1 May 2024, by section 71(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 46(1A): inserted, on 26 November 2016, by section 28(2) of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 46(1A): amended, on 1 May 2024, by section 71(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 46(1B): inserted, on 26 November 2016, by section 28(2) of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 46(1B): amended, on 1 May 2024, by section 71(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 46(1C): inserted, on 26 November 2016, by section 28(2) of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 46(1C)(b): amended, on 1 May 2024, by section 71(3) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
46A Notice of proposed alteration
(1)
If the Registrar proposes on the Registrar’s own initiative to alter a New Zealand registered or foreign registered geographical indication, or the conditions or boundaries relating to a New Zealand registered or foreign registered geographical indication, the Registrar must—
(a)
notify the registrant of the grounds of the proposed alteration; and
(b)
give public notice of the proposed alteration.
(2)
If the Registrar receives an application to alter a New Zealand registered or foreign registered geographical indication, or the conditions or boundaries relating to a New Zealand registered or foreign registered geographical indication, the Registrar must,—
(a)
if the applicant is not the registrant, send a copy of the application to the registrant; and
(b)
give public notice of the proposed alteration.
(3)
The public notice must be given in the format, manner, and frequency that the Registrar thinks appropriate.
Section 46A: inserted, on 26 November 2016, by section 29 of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 46A(1): amended, on 1 May 2024, by section 72(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 46A(1): amended, on 1 May 2024, by section 72(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 46A(2): amended, on 1 May 2024, by section 72(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
46B Interested person may oppose proposed alteration
If the Registrar gives notice of the proposed alteration of a registered geographical indication or the conditions or boundaries relating to a registered geographical indication under section 46A, an interested person may, in accordance with any prescribed requirements, oppose the proposed alteration.
Compare: 2013 No 68 s 87
Section 46B: inserted, on 26 November 2016, by section 29 of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
46C Alteration of register concerning certain inconsistent information
(1)
This section applies if information in the register relating to a person is inconsistent with the primary business data of that person in the New Zealand Business Number Register.
(2)
If this section applies, the Registrar may, in the prescribed manner (if any), alter the information in the register so that it is consistent with the primary business data in the New Zealand Business Number Register.
(2A)
Regulations made for the purposes of this section may include procedures, requirements, and other matters in respect of an alteration.
(3)
In this section, primary business data has the same meaning as in section 20(2) of the New Zealand Business Number Act 2016.
Compare: 2002 No 49 s 78A
Section 46C: inserted, on 26 November 2016, by section 29 of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 46C(2A): inserted, on 1 May 2024, by section 73 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
47 Procedure for removal or alteration
(1)
Before removing a New Zealand registered or foreign registered geographical indication from the register or altering the register, the Registrar must follow the procedure prescribed by regulations.
(2)
Those regulations may include regulations for—
(a)
[Repealed](b)
opposition, and determination of opposition, to the removal or alteration:
(c)
any other steps to be taken in effecting the removal or alteration.
(3)
This section does not affect the power of the Registrar to remove a New Zealand registered or foreign registered geographical indication from the register in accordance with section 45(4).
Section 47(1): amended, on 1 May 2024, by section 74(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 47(1): amended, on 1 May 2024, by section 74(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 47(2)(a): repealed, on 26 November 2016, by section 30(1) of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 47(3): inserted, on 26 November 2016, by section 30(2) of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 47(3): amended, on 1 May 2024, by section 74(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Renewal of registration
Heading: inserted, on 26 November 2016, by section 31 of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
47A Renewal of registration of New Zealand registered or foreign registered geographical indication
(1)
On application by an interested person, the Registrar must renew the registration of a New Zealand registered or foreign registered geographical indication.
(2)
An application for renewal must be made to the Registrar—
(a)
not more than 12 months before, and not more than 6 months after, the date on which the registration expires (the expiry date); and
(b)
in the prescribed manner.
(3)
The renewed registration is effective for a period of 10 years commencing on the expiry date.
Section 47A: replaced, on 13 January 2020, by section 45 of the Regulatory Systems (Economic Development) Amendment Act 2019 (2019 No 62).
Section 47A heading: amended, on 1 May 2024, by section 75(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 47A(1): amended, on 1 May 2024, by section 75(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
47B Notice of pending expiration of registration of New Zealand or foreign geographical indication
(1)
If no application to renew the registration of a New Zealand or foreign geographical indication has been made, the Registrar must—
(a)
give notice in writing of the pending expiration of the registration of the New Zealand or foreign geographical indication—
(i)
to the registrant; and
(ii)
to other persons and organisations that the Registrar considers are representative of the producers of the wine or spirits to which the New Zealand or foreign geographical indication relates; and
(b)
give public notice of the pending expiration of the registration of the New Zealand or foreign geographical indication.
(2)
A notice under subsection (1) must—
(aaa)
be given at least the prescribed period before the registration’s expiry date; and
(a)
be in the prescribed form (if any); and
(b)
at a minimum, state—
(i)
the date on which the registration of the geographical indication will expire; and
(ii)
any conditions as to the payment of fees (including the amount of any renewal fee) on which a renewal of registration may be obtained; and
(iii)
that,—
(A)
if the registration is not renewed before its expiry date, the register will be changed to record that the geographical indication’s status is registered-past expiry date; and
(B)
if the registration has still not been renewed 6 months after the expiry date, the geographical indication will be removed from the register.
Compare: 2002 No 49 s 59
Section 47B: inserted, on 26 November 2016, by section 31 of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 47B heading: amended, on 1 May 2024, by section 76(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 47B(1): amended, on 1 May 2024, by section 76(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 47B(1): amended, on 13 January 2020, by section 46(1) of the Regulatory Systems (Economic Development) Amendment Act 2019 (2019 No 62).
Section 47B(1)(a): amended, on 1 May 2024, by section 76(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 47B(1)(a): amended, on 1 May 2024, by section 76(3) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 47B(1)(a)(ii): amended, on 1 May 2024, by section 76(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 47B(1)(b): amended, on 1 May 2024, by section 76(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 47B(1)(b): amended, on 1 May 2024, by section 76(3) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 47B(2)(aaa): inserted, on 13 January 2020, by section 46(2) of the Regulatory Systems (Economic Development) Amendment Act 2019 (2019 No 62).
Section 47B(2)(b)(ii): amended, on 13 January 2020, by section 46(3) of the Regulatory Systems (Economic Development) Amendment Act 2019 (2019 No 62).
Section 47B(2)(b)(iii): replaced, on 13 January 2020, by section 46(4) of the Regulatory Systems (Economic Development) Amendment Act 2019 (2019 No 62).
47C Procedure if registration not renewed
(1)
If the registration of a New Zealand or foreign geographical indication is not renewed before its expiry date, the Registrar must record on the register that its status is registered-past expiry date (until the registration is renewed or it is removed from the register).
(2)
The Registrar must remove the geographical indication from the register if—
(a)
notice has been given under section 47B; and
(b)
6 months have elapsed since the registration’s expiry date; and
(c)
the registration has not been renewed.
Section 47C: replaced, on 13 January 2020, by section 47 of the Regulatory Systems (Economic Development) Amendment Act 2019 (2019 No 62).
Section 47C(1): amended, on 1 May 2024, by section 77 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Restoration to register[Repealed]
Heading: repealed, on 13 January 2020, by section 47 of the Regulatory Systems (Economic Development) Amendment Act 2019 (2019 No 62).
47D Effect of registered-past expiry date status
(1)
A New Zealand or foreign geographical indication has the status of registered-past expiry date if—
(a)
the geographical indication’s registration expiry date (referred to in section 47A) has passed; but
(b)
the geographical indication has not yet been removed from the register.
(2)
While the geographical indication’s status is registered-past expiry date, the geographical indication—
(a)
is not a registered geographical indication for the purposes of sections 21 to 24; but
(b)
is a registered geographical indication for all other purposes.
(3)
If the geographical indication’s registration is renewed before it is removed from the register under section 47C(2),—
(a)
the renewed registration takes effect from the expiry date (see section 47A(3)); and
(b)
the geographical indication is taken to have remained a registered geographical indication for all purposes from that date as if its status had not changed.
Section 47D: replaced, on 13 January 2020, by section 47 of the Regulatory Systems (Economic Development) Amendment Act 2019 (2019 No 62).
Section 47D(1): amended, on 1 May 2024, by section 78 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Costs
Heading: replaced, on 1 May 2024, by section 79 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
47E Registrar may award costs
(1)
The Registrar may, in any proceedings before the Registrar under this Part,—
(a)
by order, award to a party costs of an amount that the Registrar thinks appropriate (which, without limitation, may be on an indemnity basis); and
(b)
direct how and by what parties the costs are to be paid.
(2)
The order may be entered as a judgment of the court and may be enforced accordingly.
Section 47E: inserted, on 1 May 2024, by section 79 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
47F Registrar may require security for costs
(1)
The Registrar may require a party to proceedings to give security for the costs of the proceedings if the Registrar is satisfied that—
(a)
the party does not reside, and does not carry on business, in New Zealand; or
(b)
there is reason to believe that the party will be unable to pay the costs of the other party if unsuccessful in the proceedings.
(2)
If the party does not give the security required, the Registrar may treat the proceedings as having been abandoned by that party and determine the matter accordingly.
Section 47F: inserted, on 1 May 2024, by section 79 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
47G Meaning of proceedings for purposes of sections 47E and 47F
For the purposes of sections 47E and 47F, proceedings means any procedure prescribed by the regulations—
(a)
for opposition, and determination of opposition, to an accepted application for registration of a geographical indication as referred to in section 37(2)(b):
(b)
for opposition, and determination of opposition, to the removal or alteration of a registered geographical indication as referred to in section 47(2)(b).
Section 47G: inserted, on 1 May 2024, by section 79 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
48 Appeals in relation to Registrar’s decisions
[Repealed]Section 48: repealed, on 1 May 2024, by section 79 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
49 Notice of appeal
[Repealed]Section 49: repealed, on 1 May 2024, by section 79 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
50 Hearing of appeal
[Repealed]Section 50: repealed, on 1 May 2024, by section 79 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
51 Determination of appeal
[Repealed]Section 51: repealed, on 1 May 2024, by section 79 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
52 Provisions pending determination of appeal
[Repealed]Section 52: repealed, on 1 May 2024, by section 79 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
New Zealand geographical indications committee
Heading: replaced, on 1 May 2024, by section 80 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
53 When Registrar may establish New Zealand geographical indications committee
(1)
The Registrar may, if the Registrar thinks fit, establish a New Zealand geographical indications committee in relation to an application for 1 or more of the following:
(a)
registration of a New Zealand geographical indication:
(b)
alteration of a New Zealand registered geographical indication:
(c)
removal of a New Zealand registered geographical indication from the register.
(2)
In deciding whether or not to establish a New Zealand geographical indications committee under subsection (1) in relation to an application for registration of a New Zealand geographical indication, the Registrar must have regard to the following factors:
(a)
whether any person opposes or, in the opinion of the Registrar, is likely to oppose the application for registration:
(b)
whether the application is supported by the relevant national and regional organisations representing the wine or spirits industry, as the case may be:
(c)
whether there are any existing trade mark rights that may need to be taken into account in considering the application:
(d)
whether there are any existing homonymous New Zealand geographical indications:
(e)
whether, if the application is successful, the New Zealand geographical indication might be registered subject to conditions:
(f)
the history and the current use of the New Zealand geographical indication in New Zealand and the country of origin:
(g)
any other factors that the Registrar considers relevant.
(3)
The function of the committee is to advise the Registrar on issues relating to the matters specified in subsection (1), including—
(a)
the boundaries of a New Zealand geographical indication; and
(b)
the use of a place name as a New Zealand geographical indication.
Section 53 heading: amended, on 1 May 2024, by section 81(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 53(1): amended, on 1 May 2024, by section 81(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 53(1)(a): amended, on 1 May 2024, by section 81(3) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 53(1)(b): amended, on 1 May 2024, by section 81(4) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 53(1)(c): amended, on 1 May 2024, by section 81(4) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 53(2): amended, on 1 May 2024, by section 81(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 53(2): amended, on 1 May 2024, by section 81(3) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 53(2)(d): amended, on 1 May 2024, by section 81(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 53(2)(e): amended, on 1 May 2024, by section 81(3) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 53(2)(f): amended, on 1 May 2024, by section 81(3) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 53(3): replaced, on 26 November 2016, by section 32 of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
Section 53(3)(a): amended, on 1 May 2024, by section 81(3) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 53(3)(b): amended, on 1 May 2024, by section 81(3) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
54 Membership of New Zealand geographical indications committee
(1)
The Registrar may at any time appoint a member of the New Zealand geographical indications committee.
(2)
Each committee must include the following members:
(a)
the Surveyor-General (or the Surveyor-General’s representative) acting in their capacity as Surveyor-General:
(b)
a member of the New Zealand Geographic Board Ngā Pou Taunaha o Aotearoa, who is not the Surveyor-General, acting in their capacity as a member of that board:
(c)
1 or more persons who, in the Registrar’s opinion, have appropriate knowledge of the wine or spirits industry, as the case may be.
(3)
Subsection (2)(a) or (b) does not apply if the matter on which the Registrar requires advice does not relate to boundaries or place names respectively.
(4)
In appointing a person under subsection (2)(c), the Registrar must first consult the relevant national and regional organisations representing the wine or spirits industry, as the case may be.
(5)
The Registrar may appoint as members of the committee any other persons who, in the opinion of the Registrar, have appropriate knowledge or expertise in relation to the matter to be considered by the committee.
(6)
A member of the committee may resign office by notice in writing to the Registrar.
Section 54 heading: amended, on 1 May 2024, by section 82(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 54(1): amended, on 1 May 2024, by section 82(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 54(2)(a): amended, on 1 May 2024, by section 82(3) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 54(2)(b): amended, on 1 May 2024, by section 82(3) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 54(2)(b): amended, on 26 November 2016, by section 33 of the Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91).
55 Discharge of New Zealand geographical indications committee or removal of member
(1)
The Registrar may at any time discharge the New Zealand geographical indications committee.
(2)
The Registrar may at any time remove a member of the committee, except the Surveyor-General, and appoint another person in that person’s place.
Section 55 heading: amended, on 1 May 2024, by section 83(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 55(1): amended, on 1 May 2024, by section 83(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 55(2): amended, on 1 May 2024, by section 83(3) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
56 Proceedings of New Zealand geographical indications committee
(1)
Meetings of a New Zealand geographical indications committee must be held at the times and places as the committee or the chairperson from time to time decides.
(2)
The quorum for a meeting of a committee is 3 members.
(3)
Every question before a committee must be determined by a majority of the votes of the members present at the meeting concerned.
(4)
The chairperson of a committee has a deliberative vote and, in the case of an equality of votes, a casting vote.
(5)
Except as provided in this section and in any regulations made under this Act, and subject to any direction given by the Registrar, the committee may regulate its own procedure.
Section 56 heading: amended, on 1 May 2024, by section 84(1) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Section 56(1): amended, on 1 May 2024, by section 84(2) of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Part 4 EU FTA geographical indications
Part 4: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Registration
Heading: replaced, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
57 Registration of EU FTA geographical indication
(1)
The Secretary of Foreign Affairs and Trade must, in writing, notify the Registrar—
(a)
if, in accordance with the EU FTA, a geographical indication has been listed or changed in Section A of Annex 18-B of the EU FTA (the Annex); and
(b)
if so, whether a New Zealand registered or foreign registered geographical indication must be altered to enable the geographical indication to be registered in accordance with section 72 (if the listing or change is in respect of a homonymous or partially homonymous EU FTA geographical indication).
(2)
The notification must be made as soon as practicable after the listing or change is made in the Annex.
(3)
The Registrar must then—
(a)
register the EU FTA geographical indication by entering it in the register as soon as practicable after receiving the notification under subsection (1)(a); and
(b)
alter the register to include conditions in respect of a New Zealand registered or foreign registered geographical indication if the Registrar is notified under subsection (1)(b) (and those conditions apply immediately after they are added to the register).
(4)
However, the Registrar must not register or change an EU FTA geographical indication unless the requirements in section 58 have been complied with.
(5)
All conditions set out in the Annex relating to a homonymous or partially homonymous EU FTA geographical indication apply to the geographical indication if it is registered or changed under this section (and those conditions apply immediately after the listing or change is made in the Annex).
(6)
The Registrar is entitled to rely on a certificate from the Secretary of Foreign Affairs and Trade as to whether a listing or change of an EU FTA geographical indication in the Annex is in accordance with the EU FTA.
(7)
In this section and section 58, change, in respect of an EU FTA geographical indication, means a change to the name of an EU FTA geographical indication or the product class to which it relates.
Section 57: replaced, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
57A Recognition of agents
[Repealed]Section 57A: repealed, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
57B Registrar may refuse to recognise person as agent
[Repealed]Section 57B: repealed, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
57C Registrar may award costs
[Repealed]Section 57C: repealed, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
57D Registrar may require security for costs
[Repealed]Section 57D: repealed, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
57E Meaning of proceedings for purposes of sections 57C and 57D
[Repealed]Section 57E: repealed, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
58 Examination and opposition requirements before registration of EU FTA geographical indication
(1)
The Secretary of Foreign Affairs and Trade must, in writing, notify the Registrar if the EU requests, in accordance with the EU FTA, that New Zealand register a geographical indication or change the registration of an EU FTA registered geographical indication.
(2)
The Registrar must—
(a)
give public notice of the proposed registration, or change to the registration, of the geographical indication—
(i)
in accordance with requirements in regulations about the information that must be included; and
(ii)
in the form, manner, and frequency that the Registrar thinks appropriate; and
(b)
give interested persons an opportunity, in accordance with the opposition procedure in regulations, to oppose the registration or change to registration on the basis that there is a ground to refuse to register the geographical indication or change the registration under any of sections 62 to 69 and 71; and
(c)
examine, in accordance with the examination procedure in regulations, whether there is any ground to refuse to register the geographical indication or change the registration under any of sections 62 to 69 and 71.
(3)
The Registrar must, after complying with the requirements in subsection (2) with respect to a proposed registration or change to registration, determine—
(a)
that there are no grounds to refuse the registration or change to registration under any of sections 62 to 69 and 71; or
(b)
that there is a ground under any of sections 65 to 69 to refuse the registration or change to registration, but it is permitted under section 70; or
(c)
that there is a ground under section 71 to refuse the registration or change to registration, but it is permitted under section 72; or
(d)
that there is a ground under any of sections 62 to 69 and 71 to refuse the registration or change to registration, and it is not permitted under section 70 or 72 (as the case requires).
(4)
If the Registrar determines that a homonymous or partially homonymous EU FTA geographical indication may be registered in accordance with section 72, the Registrar must also determine whether—
(a)
the EU FTA geographical indication may be registered with conditions and, if so, what those conditions may be; and
(b)
the register in respect of an earlier registered New Zealand or foreign geographical indication may be altered by adding conditions and, if so, what those conditions may be.
(5)
The Registrar must notify the Secretary of Foreign Affairs and Trade, in writing, of the Registrar’s determinations under subsections (3) and (4), including,—
(a)
for a refusal to register an EU FTA geographical indication, the ground or grounds for refusal; and
(b)
if the Registrar decides that an EU FTA geographical indication may be registered under section 70, the reasons for the Registrar’s decision; and
(c)
if the Registrar determines that a homonymous or partially homonymous EU FTA geographical indication may be registered under section 72, the conditions, if any, that may be imposed—
(i)
on the registration of the EU FTA geographical indication and the reasons for those conditions; and
(ii)
on the registration of the earlier registered geographical indication and the reasons for those conditions.
(6)
The Registrar must also give public notice of the information provided under subsection (5), in the format and manner that the Registrar thinks appropriate.
Compare: EU FTA art 18.33.2, 18.40.2(b), (c)
Section 58: replaced, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
59 Date of registration of EU FTA geographical indications
The date of registration of an EU FTA geographical indication registered or changed under section 57 is deemed to be the date on which the Registrar gives public notice of the proposed registration or change to the registration (as the case requires) under section 58(2)(a).
Compare: EU FTA art 18.35
Section 59: replaced, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Duration of registration and removal from register
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
60 Duration of registration of EU FTA geographical indications
An EU FTA registered geographical indication remains registered unless it is removed from the register under section 61.
Compare: EU FTA art 18.34.2, 18.39.4
Section 60: replaced, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
61 Removal of EU FTA geographical indication from register
(1)
The Secretary of Foreign Affairs and Trade must, in writing, notify the Registrar that an EU FTA geographical indication has been removed from Section A of Annex 18-B of the EU FTA as soon as practicable after the removal.
(2)
The Registrar must then remove the EU FTA geographical indication from the register as soon as practicable after receiving the notification.
Compare: EU FTA art 18.34.3, 18.39.4
Section 61: replaced, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Restrictions on registration
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
62 No registration of EU FTA geographical indication if common name for good
The Registrar must not register an EU FTA geographical indication if it is a term customary in common language as the common name in New Zealand for the good to which the geographical indication relates.
Compare: EU FTA art 18.33.3(c)
Section 62: replaced, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
63 No registration of EU FTA geographical indication if name of plant variety or animal breed
The Registrar must not register an EU FTA geographical indication if it is a term that is used in New Zealand as the name of a plant variety or an animal breed and as a result is likely to mislead consumers as to the true origin of the good.
Compare: EU FTA art 18.33.3(d)
Section 63: replaced, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
64 No registration of EU FTA geographical indication if likely to be offensive
The Registrar must not register an EU FTA geographical indication if its use in relation to goods or its registration would, in the opinion of the Registrar, be likely to offend a significant section of the community, including Māori.
Compare: EU FTA art 18.33.3(f)
Section 64: replaced, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
65 No registration of EU FTA geographical indication if identical to trade mark for identical goods
(1)
The Registrar must not register an EU FTA geographical indication if it is identical to a trade mark and the trade mark is registered in New Zealand in respect of identical goods.
(2)
The Registrar must not register an EU FTA geographical indication if—
(a)
it is identical to a trade mark; and
(b)
the owner of the trade mark has in good faith applied for the registration in New Zealand of the trade mark in respect of identical goods; and
(c)
the trade mark’s deemed date of registration (as defined in section 5 of the Trade Marks Act 2002), if the trade mark were to be registered, is earlier than the date of the public notice of the proposed registration of the geographical indication under section 58(2)(a).
(3)
The Registrar must not register an EU FTA geographical indication if it is identical to a trade mark and rights to the trade mark have been acquired through use in New Zealand in good faith in respect of identical goods.
Compare: EU FTA art 18.33.3(a)
Section 65: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
66 No registration of EU FTA geographical indication if identical to trade mark for similar goods
(1)
The Registrar must not register an EU FTA geographical indication if—
(a)
it is identical to a trade mark; and
(b)
the trade mark is registered in New Zealand in respect of similar goods; and
(c)
its use is likely to deceive or confuse.
(2)
The Registrar must not register an EU FTA geographical indication if—
(a)
it is identical to a trade mark; and
(b)
the owner of the trade mark has in good faith applied for the registration in New Zealand of the trade mark in respect of similar goods; and
(c)
the trade mark’s deemed date of registration (as defined in section 5 of the Trade Marks Act 2002), if the trade mark were to be registered, is earlier than the date of the public notice of the proposed registration of the geographical indication under section 58(2)(a); and
(d)
its use is likely to deceive or confuse.
(3)
The Registrar must not register an EU FTA geographical indication if—
(a)
it is identical to a trade mark; and
(b)
rights to the trade mark have been acquired through use in New Zealand in good faith in respect of similar goods; and
(c)
its use is likely to deceive or confuse.
Compare: EU FTA art 18.33.3(a)
Section 66: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
67 No registration of EU FTA geographical indication if similar to trade mark for identical goods
(1)
The Registrar must not register an EU FTA geographical indication if—
(a)
it is similar to a trade mark; and
(b)
the trade mark is registered in New Zealand in respect of identical goods; and
(c)
its use is likely to deceive or confuse.
(2)
The Registrar must not register an EU FTA geographical indication if—
(a)
it is similar to a trade mark; and
(b)
the owner of the trade mark has in good faith applied for the registration in New Zealand of the trade mark in respect of identical goods; and
(c)
the trade mark’s deemed date of registration (as defined in section 5 of the Trade Marks Act 2002), if the trade mark were to be registered, is earlier than the date of the public notice of the proposed registration of the geographical indication under section 58(2)(a); and
(d)
its use is likely to deceive or confuse.
(3)
The Registrar must not register an EU FTA geographical indication if—
(a)
it is similar to a trade mark; and
(b)
rights to the trade mark have been acquired through use in New Zealand in good faith in respect of identical goods; and
(c)
its use is likely to deceive or confuse.
Compare: EU FTA art 18.33.3(a)
Section 67: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
68 No registration of EU FTA geographical indication if similar to trade mark for similar goods
(1)
The Registrar must not register an EU FTA geographical indication if—
(a)
it is similar to a trade mark; and
(b)
the trade mark is registered in New Zealand in respect of similar goods; and
(c)
its use is likely to deceive or confuse.
(2)
The Registrar must not register an EU FTA geographical indication if—
(a)
it is similar to a trade mark; and
(b)
the owner of the trade mark has in good faith applied for the registration in New Zealand of the trade mark in respect of similar goods; and
(c)
the trade mark’s deemed date of registration (as defined in section 5 of the Trade Marks Act 2002), if the trade mark were to be registered, is earlier than the date of the public notice of the proposed registration of the geographical indication under section 58(2)(a); and
(d)
its use is likely to deceive or confuse.
(3)
The Registrar must not register an EU FTA geographical indication if—
(a)
it is similar to a trade mark; and
(b)
rights to the trade mark have been acquired through use in New Zealand in good faith in respect of similar goods; and
(c)
its use is likely to deceive or confuse.
Compare: EU FTA art 18.33.3(a)
Section 68: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
69 No registration of EU FTA geographical indication if identical or similar to well-known trade mark that indicates connection
The Registrar must not register an EU FTA geographical indication if—
(a)
it is identical or similar to a trade mark that is well known in New Zealand; and
(b)
the trade mark is registered in New Zealand in respect of goods that are neither identical nor similar to the good to which the EU FTA geographical indication relates; and
(c)
the use of the geographical indication in respect of a good is likely to indicate a connection to the owner of the trade mark; and
(d)
the interests of the trade mark owner are likely to be damaged by the use of the geographical indication; and
(e)
the trade mark’s deemed date of registration (as defined in section 5 of the Trade Marks Act 2002) is earlier than the public notice of the proposed registration of the geographical indication under section 58(2)(a).
Compare: EU FTA art 18.33.3(b)
Section 69: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
70 When restrictions in sections 65 to 69 do not apply
(1)
The restrictions in sections 65 to 69 do not apply, and the Registrar may register an EU FTA geographical indication that is identical or confusingly similar to a trade mark, if—
(a)
the owner of the trade mark has consented to its registration as a geographical indication; or
(b)
the Registrar considers that the geographical indication may co-exist with the trade mark.
(2)
In making a decision under subsection (1)(b), the Registrar must have regard to the following factors:
(a)
the geographical indication’s history of use in good faith in New Zealand:
(b)
recognition of the geographical indication in New Zealand as a geographical indication:
(c)
the legitimate interests of the owner of the trade mark and of third parties:
(d)
any other relevant factors.
Section 70: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Registration of homonymous EU FTA geographical indication
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
71 Registrar may register homonymous or partially homonymous EU FTA geographical indication
(1)
The Registrar must not register an EU FTA geographical indication if it is a homonymous or partially homonymous EU FTA geographical indication except in accordance with section 72.
(2)
In this Act, homonymous or partially homonymous EU FTA geographical indication means—
(a)
an EU FTA geographical indication for a wine that consists of or includes the same spelling, or sounds the same in whole or part, as a word or term that is part of—
(i)
a New Zealand registered or foreign registered geographical indication for a wine having a different geographical origin; or
(ii)
a New Zealand or foreign geographical indication for a wine having a different geographical origin for which an application for registration under section 36 has been made; or
(b)
an EU FTA geographical indication for a spirit that consists of or includes the same spelling, or sounds the same in whole or part, as a word or term that is part of—
(i)
a New Zealand registered or foreign registered geographical indication for a spirit having a different geographical origin; or
(ii)
a New Zealand or foreign geographical indication for a spirit having a different geographical origin for which an application for registration under section 36 has been made.
Compare: EU FTA art 18.33.3(e)
Section 71: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
72 Registrar may impose conditions when registering homonymous or partially homonymous EU FTA geographical indication
(1)
The Registrar may register a homonymous or partially homonymous EU FTA geographical indication with conditions, or alter the register to include conditions for the use of the earlier registered geographical indication (in the case of a New Zealand registered or foreign registered geographical indication), or both.
(2)
In deciding what conditions (if any) to impose under subsection (1), the Registrar must take into account—
(a)
the need for the equitable treatment of the producers of goods to which the geographical indications relate; and
(b)
the need to ensure that consumers are not misled.
Compare: EU FTA art 18.39
Section 72: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Restriction on use
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
73 Restriction on use of EU FTA registered geographical indication
(1)
A person must not, in trade, use an EU FTA registered geographical indication in relation to a good that falls within the product class for which the EU FTA registered geographical indication is registered, unless the good meets the product specification of the EU FTA registered geographical indication.
(2)
Subsection (1) applies even if—
(a)
the true place of origin of the good is indicated; or
(b)
the EU FTA registered geographical indication is used in translation or transliteration (whether or not the transliteration is specified on the register); or
(c)
the use of the EU FTA registered geographical indication is accompanied by any of the words “kind”
, “type”
, “style”
, “imitation”
, or any similar word or expression.
(3)
Despite subsection (2)(b), the restriction in subsection (1) does not apply to a translated term if evidence is provided that shows there is no link between the geographical indication and the translated term.
(4)
In this section,—
product class means a product class from Annex 18-A of the EU FTA
product specification means the requirements approved by the EU for using a geographical indication for marketing a particular product, including (without limitation)—
(a)
the name protected as a geographical indication in respect of the product; and
(b)
a description of the product; and
(c)
the specific geographical area to which the geographical indication relates; and
(d)
a description of the method of making the product to which the geographical indication relates; and
(e)
the authority or body responsible for verifying compliance with the product specification.
Compare: EU FTA art 18.32.2(b), (c), 18.34.1(a)
Section 73: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
When restriction on use does not apply
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
74 EU FTA geographical indication no longer protected in country of origin
The restriction on the use of an EU FTA registered geographical indication in section 73 ceases to apply from the date on which the geographical indication ceases to be protected in its country of origin.
Compare: EU FTA art 18.34.2, 18.34.3
Section 74: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
75 Person’s name or common English word
(1)
The restriction on the use of an EU FTA registered geographical indication in section 73 does not affect the right of any person to use, in the course of trade, that person’s name or the name of the person’s predecessor in business, except if the name is used in such a manner as to mislead the public.
(2)
The restriction on the use of an EU FTA registered geographical indication in section 73 does not apply to any word, or a translation or transliteration of any word, contained in an EU FTA registered geographical indication if that word, translation, or transliteration is a common English word such as “mountain”
, “alps”
, or “river”
.
Compare: EU FTA art 18.34.4, 18.34.7
Section 75: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
76 Customary or common name
(1)
The restriction on the use of an EU FTA registered geographical indication in section 73 does not apply with respect to a good if the geographical indication is identical or similar to—
(a)
the name of a plant variety or an animal breed that has become the customary name of the plant variety or animal breed and as a result is likely to mislead the consumer as to the true origin of the good; or
(b)
a term that has become customary in common language as the common name for the good in New Zealand.
(2)
When determining whether a name or term has become a customary or common name for the purposes of subsection (1), only use of the name or term on and after the applicable date is relevant.
(3)
In this section, applicable date means—
(a)
the deemed date of registration under section 59, for an EU FTA geographical indication registered under section 57; or
(b)
the deemed date of registration under clause 2(2) of Schedule 1, for an EU FTA geographical indication registered under that clause that is not subject to a transitional period under Section A of Annex 18-B of the EU FTA; or
(c)
the day after the end of the transitional period set out in Section A of Annex 18-B of the EU FTA, for a geographical indication registered under clause 2 of Schedule 1 that is subject to a transitional period under Section A of Annex 18-B of the EU FTA.
Compare: EU FTA art 18.34.5
Section 76: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
77 Customary or common name for individual word or term
The restriction on the use of an EU FTA registered geographical indication in section 73 does not apply to any word or term that is part of an EU FTA registered geographical indication for a good if the word or term is identical or similar to—
(a)
the customary name of a plant variety or an animal breed and as a result is likely to mislead the consumer as to the true origin of the good; or
(b)
a term customary in common language as the common name for the good in New Zealand.
Example
Irish whiskey from Ireland is subject to the restrictions applying to EU FTA geographical indications, but the restrictions do not apply to the word “whiskey”
when used in isolation or when combined with words other than “Irish”.
Compare: EU FTA art 18.34.6
Section 77: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
78 Goods to be marketed and sold until stocks exhausted
(1)
Goods that, on the applicable date, are described and presented in a manner that does not comply with the restriction on the use of an EU FTA registered geographical indication in section 73 may be marketed and sold until stocks are exhausted.
(2)
In subsection (1), applicable date means—
(a)
the day before the deemed date of registration under section 59, for an EU FTA geographical indication registered under section 57; or
(b)
the day before the deemed date of registration under clause 2(2) of Schedule 1, for an EU FTA geographical indication registered under that clause that is not subject to a transitional period under Section A of Annex 18-B of the EU FTA; or
(c)
the last day of the transitional period set out in Section A of Annex 18-B of the EU FTA, for a geographical indication registered under clause 2 of Schedule 1 that is subject to a transitional period under Section A of Annex 18-B of the EU FTA.
Compare: EU FTA art 18.39.5
Section 78: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Part 5 Enforcement
Part 5: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
79 Interpretation
In this Part, unless the context otherwise requires,—
GI officer means an officer appointed under section 80
infringing good is a good that bears, or a good the packaging of which bears, a registered geographical indication contrary to a restriction on use
infringing material means material that bears a registered geographical indication and is—
(a)
used for labelling or packaging goods, as a business paper, or for advertising goods, in a way that is contrary to a restriction on use; or
(b)
intended to be used in a way that is contrary to a restriction on use
infringing object means an object that is—
(a)
specifically designed or adapted for making copies of a geographical indication; and
(b)
in the possession, custody, or control of a person who knows or has reason to believe that the object has been or is to be used to produce infringing goods or infringing material
issuing officer has the same meaning as in section 3(1) of the Search and Surveillance Act 2012
relevant good means a good of a kind to which a registered geographical indication may relate
restriction on use means a restriction on the use of a registered geographical indication under any of sections 21 to 24 or section 73
written or in writing means printed, typewritten, or otherwise visibly represented, copied, or reproduced, including by fax, email, or other electronic means.
Section 79: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Subpart 1—GI officers
Subpart 1: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
80 Appointment of GI officers
(1)
The chief executive may appoint persons as GI officers for the purposes of this Act.
(2)
Persons appointed under subsection (1) must be employed under the Public Service Act 2020.
(3)
A GI officer’s appointment document may authorise the officer to perform all the functions and duties, and exercise all the powers, that this Act confers on GI officers.
(4)
Alternatively, the GI officer’s appointment document may specify the particular functions and duties that the officer may perform and the particular powers that the officer may exercise.
(5)
The chief executive may impose written conditions on the appointment of a GI officer.
(6)
GI officers must not delegate any of their functions, duties, or powers.
Compare: 2014 No 32 s 276
Section 80: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
81 Suspension or cancellation of appointment of GI officer
(1)
The chief executive may decide to suspend a person’s appointment as a GI officer.
(2)
The chief executive must give the person a written notice that—
(a)
states that the person’s appointment is suspended; and
(b)
states one of the following:
(i)
what the period of the suspension is:
(ii)
that the suspension is for an indefinite period; and
(c)
states the reason for the suspension; and
(d)
states that the person may apply for a review of the decision under section 82.
(3)
The chief executive may decide to cancel a person’s appointment as a GI officer.
(4)
The chief executive must give the person a written notice that—
(a)
states that the person’s appointment is cancelled; and
(b)
states when the cancellation takes effect; and
(c)
states the reason for the cancellation; and
(d)
states that the person has the right to seek a review of the decision under section 82.
Compare: 2014 No 32 s 277
Section 81: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
82 Right of review of decision to suspend or cancel appointment of GI officer
(1)
A person dissatisfied with a decision described in section 81(1) or (3) may apply to have it reviewed.
(2)
An application for a review must—
(a)
be written; and
(b)
state the grounds on which it is made; and
(c)
be provided to the chief executive within 20 working days after the applicant is notified of the decision.
(3)
Schedule 2 applies to the review of (and further appeals in relation to) a decision to suspend or cancel the appointment of a GI officer.
Compare: 2014 No 32 ss 355(1), 356(1), (2), 357
Section 82: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
83 Chief executive may give general directions on functions, duties, or powers
(1)
The chief executive may give a direction to any GI officer individually or to GI officers as a class.
(2)
The direction must be about the performance of the officer’s functions or duties, or the exercise of the officer’s powers, under this Act and may, without limitation, include instructions or requirements relating to the performance of specific tasks.
(3)
An officer to whom a direction is given under this section must ensure that it is complied with.
(4)
However, an action taken by an officer to whom a direction is given under this section is not invalid by reason only of a failure of that officer to comply with the direction.
Compare: 2014 No 32 s 278
Section 83: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
84 Functions, duties, and powers of GI officer may be performed or exercised by chief executive
The chief executive may perform or exercise the functions, duties, and powers of a GI officer under this Act.
Section 84: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Subpart 2—Enforcement powers
Subpart 2: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
85 GI officer may require information about relevant goods
(1)
This section applies if a GI officer reasonably suspects that a person has any information that the GI officer considers is necessary for the purpose of determining whether there has been a breach of a restriction on use.
(2)
Information referred to in subsection (1) includes, without limitation, information about—
(a)
where, how, and when a relevant good is manufactured; or
(b)
the source of ingredients used in a relevant good; or
(c)
the marketing and distribution channels used for a relevant good.
(3)
The GI officer may—
(a)
require the person to produce the information to the GI officer or the chief executive; and
(b)
copy the information.
(4)
A copy made under subsection (3) and certified by the GI officer or the chief executive as a true and correct copy is presumed to be a true and correct copy, until the contrary is proved.
(5)
Subpart 5 of Part 4 of the Search and Surveillance Act 2012 (privilege and confidentiality) applies to requirements made, and the copying of information, under this section.
Compare: 2014 No 32 s 292
Section 85: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
86 Person assisting GI officer
A person whom a GI officer requests to assist under this subpart must act under the supervision of, and as instructed by, the officer.
Compare: 2014 No 32 s 297(2)(a)
Section 86: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
87 Other powers of GI officer
(1)
A GI officer may ask about a document relating to the applicable requirements of this Act.
(2)
A GI officer may require a person engaged in trade in a relevant good to state—
(a)
the person’s full name and full address; and
(b)
the person’s email address; and
(c)
the person’s telephone numbers; and
(d)
the person’s date of birth; and
(e)
the person’s occupation; and
(f)
the full name and full address of the person from whom a relevant good was obtained, if that person is known; and
(g)
whether the person is employed or self-employed, and (if an employee) the name of the person’s employer.
(3)
Subsection (4) applies if a GI officer believes on reasonable grounds that a person engaging in trade is breaching, or has breached, a restriction on use.
(4)
A GI officer may at any reasonable time—
(a)
question the person or any other person; and
(b)
require the person being questioned to provide an answer, including any explanation or information concerning any relevant good or any place, record, document, or thing relating to trade in any relevant good.
(5)
Subpart 5 of Part 4 of the Search and Surveillance Act 2012 (privilege and confidentiality) applies to any information or document required to be produced under this section.
Compare: 2014 No 32 s 308(1), (2), (4)–(6)
Section 87: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Power of entry and inspection
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
88 Power of entry and inspection
(1)
For the purpose of determining whether the applicable requirements of this Act have been, or are being, complied with, a GI officer may at any reasonable time enter and inspect a place described in subsection (2) (place A) without a search warrant.
(2)
The places are—
(a)
a place where a relevant good is traded:
(b)
a place where the officer reasonably believes documents relating to trading in a relevant good will be found:
(c)
any other place where the officer reasonably believes that—
(i)
a relevant good is held for the purposes of trade; or
(ii)
a relevant good is being traded in.
(3)
The power in subsection (1) may be exercised only with the consent of the occupier of place A given after the GI officer has informed the occupier—
(a)
of the purpose of the entry and inspection; and
(b)
that the occupier may refuse to give consent to the entry and inspection; and
(c)
that the occupier may revoke their consent at any time; and
(d)
that any thing seized during the inspection may be used in evidence in proceedings.
(4)
Subsection (3) does not apply if—
(a)
place A is in a public place and the entry is made when place A is open to the public; or
(b)
place A is a place of business and the entry is made—
(i)
when it is open for carrying on business; and
(ii)
only to those parts of it that are open to the public.
(5)
For the purpose of this section,—
place—
(a)
includes (without limitation)—
(i)
a structure or tent, whether fully or partly erected; and
(ii)
a stand or stall; and
(iii)
a vehicle; and
(iv)
a caravan, trailer, or other conveyance; but
(b)
does not include a private dwelling house or marae
public place means a place that is open to or being used by the public, with or without payment by the public of a charge.
(6)
For the purposes of this section, any person who appears to be under 14 years of age must not be treated as the occupier.
Compare: 2002 No 49 s 134D
Section 88: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
89 What GI officer and person assisting may do when exercising power of entry and inspection
(1)
The power of entry and inspection conferred by section 88 authorises a GI officer to do any of the following:
(a)
examine the place and all things, including any document:
(b)
seize any thing that the officer has reasonable grounds to believe is evidence of, or of significant relevance to the investigation of, a breach of a restriction on use:
(c)
bring and use in or on the place equipment for the purposes of carrying out the inspection:
(d)
take photographs or sound or video recordings of the place, and of any thing found in that place, if the GI officer has reasonable grounds to believe that the photographs or sound or video recordings may be relevant in any proceedings (including future proceedings) related to the entry and inspection:
(e)
copy the whole or part of anything the GI officer has reasonable grounds to believe is infringing material:
(f)
take any person to the place to assist the officer with the inspection.
(2)
The power under subsection (1)(b) does not extend to removing any item merely to remove an infringing good, or a good that a GI officer suspects is an infringing good, from sale.
(3)
A person who assists a GI officer exercising the power of entry and inspection may, under the direction of the GI officer,—
(a)
exercise any of the powers described in subsection (1)(a), (c), (d), and (e); and
(b)
seize any thing that the GI officer determines may lawfully be seized.
(4)
If a GI officer enters and inspects a place in circumstances to which section 88(3) applies and the occupier revokes their consent,—
(a)
the GI officer and any person assisting the GI officer must immediately stop the inspection and leave the place; but
(b)
before leaving the place, the GI officer may seize any thing already identified by the officer before the revocation of consent as a thing that the officer has reasonable grounds to believe is evidence of, or of significant relevance to the investigation of, an offence under this Act.
(5)
Sections 131 to 135 and subparts 5 and 6 of Part 4 of the Search and Surveillance Act 2012 apply to anything done under this section.
Compare: 2002 No 49 s 134E
Section 89: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Search warrants
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
90 Application for search warrant
(1)
The following provisions of the Search and Surveillance Act 2012 apply in relation to applications for a search warrant:
(a)
section 98 (application for search warrant):
(b)
section 99 (application must be verified):
(c)
section 100 (mode of application for search warrant).
(2)
A GI officer may apply to an issuing officer for a search warrant.
Compare: 2014 No 32 s 322
Section 90: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
91 Issue of search warrant
(1)
This section applies if an issuing officer reasonably believes that there is, at a place, any thing—
(a)
in relation to which a breach of a restriction on use is or has been occurring; or
(b)
that has been, is being, or is intended to be used by a person in connection with a breach of a restriction on use; or
(c)
that is evidence of a breach of a restriction on use.
(2)
The issuing officer may issue a search warrant for a place.
(3)
Sections 102 to 105 and 107 and subpart 5 of Part 4 of the Search and Surveillance Act 2012 apply.
Compare: 2014 No 32 ss 323, 325
Section 91: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
92 Powers under search warrant
(1)
This section applies to a GI officer who is authorised by a search warrant to exercise powers at a place.
(2)
Any exercise of the powers at a marae or a building associated with a marae must take account of the kawa of the marae so far as practicable in the circumstances.
(3)
Section 110 of the Search and Surveillance Act 2012 applies.
Compare: 2014 No 32 s 326
Section 92: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
93 Carrying out search powers
Sections 106, 111 to 114, 115(1)(b) and (3), 116, 117, 120 to 130, 131(1) to (6), and 132 to 135 of the Search and Surveillance Act 2012 apply.
Compare: 2014 No 32 s 327
Section 93: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
94 Disposal of property seized under search warrant
Compare: 2014 No 32 s 328
Section 94: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
95 Retention of documents
Section 101 of the Search and Surveillance Act 2012 applies to a copy (whether in electronic form or otherwise) of every written application for a search warrant or (in the case of an oral application) the record of the application made by the issuing officer.
Compare: 2014 No 32 s 329
Section 95: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Notices of direction
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
96 GI officer may give notice of direction
(1)
A GI officer may give a notice to a person under this section (a notice of direction) if satisfied on reasonable grounds that the person has breached a restriction on use.
(2)
The notice of direction must—
(a)
identify the relevant registered geographical indication and the good that is, or goods that are, alleged to breach a restriction on use; and
(b)
require the person, within a specified time that is reasonable in the circumstances, to cease further use of the registered geographical indication; and
(c)
require the person to withdraw from trade the good that is, or goods that are, alleged to breach a restriction on use; and
(d)
state the right of the person to—
(i)
request an extension of time under subsection (4); and
(ii)
apply for a review of the notice of direction under section 99; and
(e)
specify the consequences of not complying with the notice.
(3)
The notice may,—
(a)
if the GI officer thinks it appropriate, require the person, in a manner and within a period specified in the notice and at the person’s own expense, to arrange for the withdrawal from trade of any good that is, or goods that are, alleged to breach a restriction on use that the person has supplied to any other person for retail sale:
(b)
specify any other reasonable requirements or conditions that the person must comply with.
(4)
A GI officer may extend the specified time stated in the notice under subsection (2)(b) if requested by the person to whom the notice was issued within 15 working days after the date on which the notice of direction was served.
(5)
No requirement under subsection (2)(c) or (3)(a) applies in respect of goods that, on the date on which the notice is served, have already been sold to a consumer.
Section 96: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
97 Service of notice of direction
(1)
The GI officer must ensure that the notice of direction is served on the person to whom it is given.
(2)
The notice of direction may be served by—
(a)
delivering it to the person; or
(b)
leaving it at the person’s usual or last known place of residence or business; or
(c)
posting it by letter addressed to the person at that place of residence or business or at that address; or
(d)
emailing it to the person at an email address that is used by the person.
(3)
If the notice is required to be served on a body corporate, the notice may be served—
(a)
on a director or an officer of the body corporate in a manner specified in subsection (2); or
(b)
by delivering it to the body corporate’s head office, principal place of business or work, or registered office.
(4)
If the notice is required to be served on an association or body of persons,—
(a)
the notice may be served in a manner specified in subsection (2) on the secretary, executive officer, manager, or other officer holding a similar position in the association or body; and
(b)
service on the association or body must, unless otherwise directed by the GI officer or stated in the notice, be treated as service on all persons who are members of the association or body, or who are represented on the association or body by those members.
(5)
If a notice is sent to a person by a service that records delivery, then,—
(a)
unless the contrary is proved, the notice must be treated as having been delivered to the person when it would have been delivered in the ordinary course of business for that service; and
(b)
in proving the delivery, it is sufficient to prove that the notice was properly addressed and provided to the service.
(6)
A notice given to a person by electronic means is treated as having been received by the person not later than 5 working days after the date on which it was sent, unless the person proves that—
(a)
the person did not receive it; and
(b)
the non-receipt was not the person’s fault.
(7)
Subsection (6) does not apply if the electronic system for processing the electronic communication has sent to the sender an automatic message to the effect that the notice has not been received by the recipient.
Compare: 1986 No 121 s 47I; 2014 No 32 s 378
Section 97: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
98 GI officer may amend or cancel notice of direction
(1)
A notice of direction may be amended or cancelled at any time by any GI officer.
(2)
The power in subsection (1) is subject to any decision under section 99(8).
Section 98: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
99 Review of notice of direction
(1)
A person to whom a notice of direction is given may apply to the chief executive for a review of the notice.
(2)
An application for a review must—
(a)
be written; and
(b)
state the grounds on which it is made; and
(c)
contain or be accompanied by relevant information to support the grounds on which it is made; and
(d)
be provided to the chief executive within 20 working days after the notice of direction is served, or any longer period allowed by the chief executive.
(3)
The chief executive must review the notice within 20 working days after the date on which the chief executive receives the application.
(4)
The chief executive may give the applicant a notice in writing requiring the applicant to supply information additional to that contained in the application within a time specified by the chief executive.
(5)
The time limit specified in subsection (3) does not include—
(a)
the time the applicant takes to supply information under subsection (4); or
(b)
the time allowed for the applicant to supply the information, if the applicant does not supply it.
(6)
The chief executive must—
(a)
give the applicant a notice in writing of the time within which submissions on the review may be made; and
(b)
consider any submissions by the applicant.
(7)
The review is by way of a rehearing.
(8)
The chief executive may confirm, amend, cancel, or replace the notice of direction.
(9)
The chief executive must, as soon as practicable, give the applicant a notice in writing of—
(a)
the decision on the review; and
(b)
the reasons for the decision on the review.
Compare: 2014 No 32 s 358
Section 99: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
100 Appeal against decision on review of notice of direction
Clauses 3 to 7 of Schedule 2 apply to a decision under section 99.
Section 100: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Information sharing
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
101 Application of section 102
(1)
Section 102 applies to—
(a)
the information described in subsection (2); and
(b)
the agencies described in subsection (3).
(2)
The information is—
(a)
personal information as defined in the Privacy Act 2020; and
(b)
information about a business engaging in trade in a relevant good that includes, to avoid doubt, confidential information or commercially sensitive information, or both.
(3)
The agencies are those that perform functions under, or administer, the whole or any part of this Act or the following Acts:
(d)
(i)
(j)
(m)
(p)
any other Act enacted in substitution for any of the Acts specified in paragraphs (a) to (o).
Compare: 2014 No 32 s 368
Section 101: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
102 Disclosure of information
(1)
An agency to which this section applies may disclose information to which this section applies if the agency reasonably believes that subsections (2) and (3) are satisfied.
(2)
The disclosure must be only of information supplied or obtained—
(a)
under or for the purposes of this Act that is necessary or desirable to promote the enforcement of other legislation referred to in section 101(3); or
(b)
under or for the purposes of legislation (other than this Act) referred to in section 101(3) that is necessary or desirable to promote the enforcement of this Act.
(3)
Despite subsections (1) and (2), the only information supplied or obtained under the Trade Marks Act 2002 that may be disclosed under this section is information relevant to the investigation of a breach or potential breach of sections 120 to 124 of that Act.
(4)
The agency that discloses the information must make and keep a record of—
(a)
the information that was disclosed; and
(b)
the agency to which it was disclosed; and
(c)
any conditions subject to which it was disclosed.
Compare: 2014 No 32 s 369
Section 102: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
103 Disclosure of information outside New Zealand
(1)
The chief executive may disclose information to an overseas person under this section.
(2)
The information that may be disclosed is—
(a)
personal information, as defined in the Privacy Act 2020, that is supplied or obtained under or for the purposes of this Act; and
(b)
information about a business engaging in trade in a relevant good that includes, to avoid doubt, confidential information or commercially sensitive information, or both.
(3)
The disclosure may be made only if section 104 is satisfied.
Compare: 2014 No 32 s 370
Section 103: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
104 Disclosure of information outside New Zealand must be under agreement
(1)
The chief executive may disclose information under section 103 under an agreement that is made between the chief executive and the overseas person.
(2)
Before making an agreement, the chief executive—
(a)
must consult the Privacy Commissioner; and
(b)
must be satisfied that the agreement is necessary—
(i)
to help investigate, prevent, identify, or respond to non-compliance with this Act or the relevant law in the overseas country; or
(ii)
to respond to a difficulty arising in the course of trade between New Zealand and the overseas country involving or related to goods with registered geographical indications.
(3)
The agreement—
(a)
must be in writing; and
(b)
must state the criteria for the disclosure of information under it to the overseas person; and
(c)
must state the use that the overseas person may make of the information disclosed; and
(d)
must state whether the overseas person may disclose the information disclosed to any other person; and
(e)
if the overseas person may disclose any of the information disclosed to any other person, must state—
(i)
the persons to whom the overseas person may disclose it; and
(ii)
the extent to which the overseas person may disclose it; and
(iii)
the conditions subject to which the overseas person may disclose it; and
(f)
may state—
(i)
the form in which the information may be disclosed; and
(ii)
the method by which the information may be disclosed.
Compare: 2014 No 32 s 371
Section 104: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
105 Privacy Commissioner may request review of agreement
(1)
The Privacy Commissioner may require the chief executive to review an agreement and the arrangements for disclosure under it.
(2)
The Privacy Commissioner may make the requirement at intervals of at least 12 months.
(3)
The chief executive must—
(a)
conduct the review; and
(b)
as soon as practicable after doing so, report the result to the Privacy Commissioner.
Compare: 2014 No 32 s 372
Section 105: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Subpart 3—Civil remedies and offences
Subpart 3: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Civil proceedings for breach of restriction on use
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
106 No proceedings for use of unregistered geographical indication
No person may bring proceedings under this Act to prevent, or to recover damages for, the use of an unregistered geographical indication.
Compare: 2002 No 49 s 99
Section 106: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
107 Who may bring proceedings for breach of restriction on use of registered geographical indication
The following persons may apply to the court for relief for a breach of a restriction on use in relation to a particular registered geographical indication:
(a)
a person with an interest in upholding the restrictions on use of the registered geographical indication:
(b)
the chief executive.
Compare: 2002 No 49 s 101
Section 107: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
108 Time for bringing proceedings
(1)
An application under section 107 may be made only if the breach occurred on or after the deemed date of registration of the geographical indication.
(2)
In subsection (1), deemed date of registration means,—
(a)
for a New Zealand registered or foreign registered geographical indication, the date referred to in section 9(1); and
(b)
for an EU FTA registered geographical indication, the date referred to in section 59 or clause 2(2) of Schedule 1.
Compare: 2002 No 49 s 100
Section 108: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
109 Unjustified proceedings
(1)
If a person brings proceedings alleging a breach of a restriction on use in relation to a particular registered geographical indication, the court may, on the application of any person against whom the proceedings are brought,—
(a)
make a declaration that the bringing of proceedings is unjustified:
(b)
make an order for the payment of damages for any loss suffered by the person against whom the proceedings are brought.
(2)
The court must not grant relief under this section if the person who brings the proceedings proves that the acts in respect of which proceedings are brought constituted, or would have constituted if they had been done, a breach of a restriction on use in relation to the particular registered geographical indication.
(3)
Nothing in this section makes a barrister or solicitor of the High Court of New Zealand liable to any proceedings under this section in respect of any act done in that person’s professional capacity on behalf of a client.
Compare: 2002 No 49 s 105
Section 109: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Types of relief in civil proceedings
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
110 Types of relief available for breach of restriction on use
(1)
If an application is made to the court for relief, the relief that the court may grant includes—
(a)
an injunction on any terms that the court thinks fit:
(b)
either damages or an account of profits.
(2)
If an application is made to the court for relief, the court may grant any additional damages that the justice of the case requires, having regard to all the circumstances and, in particular, to—
(a)
the flagrancy of the breach; and
(b)
any benefit accruing to the defendant by reason of the breach.
(3)
If in an application brought by the chief executive the court orders an account of profits, the order must be made in respect of the Crown.
Compare: 2002 No 49 s 106
Section 110: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
111 Order for erasure, etc, of offending geographical indication
(1)
If a person has breached a restriction on use, the court may make an order that requires the person—
(a)
to erase, remove, or obliterate the geographical indication from any infringing goods, infringing material, or infringing object in the person’s possession, custody, or control; or
(b)
if it is not reasonably practicable to erase, remove, or obliterate the geographical indication, to destroy the infringing goods, infringing material, or infringing object.
(2)
If an order under subsection (1) is not complied with, or it appears to the court likely that the order will not be complied with, the court may order that the infringing goods, infringing material, or infringing object be delivered to any person whom the court may direct—
(a)
to erase, remove, or obliterate the offending geographical indication from the infringing goods, infringing material, or infringing object; or
(b)
if it is not reasonably practicable to erase, remove, or obliterate the offending geographical indication, to destroy the infringing goods, infringing material, or infringing object.
Compare: 2002 No 49 s 108
Section 111: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Orders for delivery up in civil proceedings
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
112 Order for delivery up of infringing goods, infringing material, or infringing object
(1)
The court may order any infringing goods, infringing material, or infringing object in the possession of any person or before the court to be delivered up to the plaintiff or any other person that the court thinks fit.
(2)
No order may be made under this section unless—
(a)
the court makes an order under section 113; or
(b)
it appears to the court that there are grounds for making an order under that section.
(3)
A person to whom any infringing goods, infringing material, or infringing object is delivered up under an order made under this section must, if an order under section 113 is not made, retain the goods, material, or object pending—
(a)
the making of an order under that section; or
(b)
the decision not to make an order under that section.
(4)
Nothing in this section affects any other power of the court.
Compare: 2002 No 49 s 109
Section 112: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
113 Order for disposal of infringing goods, infringing material, or infringing object
An application may be made to the court for an order that the infringing goods, infringing material, or infringing object delivered up under an order made under section 112 must be—
(a)
forfeited to the plaintiff or any other person that the court thinks fit; or
(b)
destroyed or otherwise dealt with as the court thinks fit.
Compare: 2002 No 49 s 110
Section 113: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
114 Matters to be considered by court
In considering what order, if any, should be made under section 113, the court must consider—
(a)
whether other remedies available for the breach of a restriction on use would be adequate to compensate, or protect the interests of, the plaintiff; and
(b)
the need to ensure that—
(i)
no infringing goods, infringing material, or infringing objects are disposed of in a manner that would adversely affect the interests of the plaintiff or any person with an interest in the goods, material, or objects; and
(ii)
no infringing goods, infringing material, or infringing objects are disposed of in a manner that would breach the restrictions on use of the registered geographical indication.
Compare: 2002 No 49 s 111
Section 114: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
115 Directions for service
The court must issue directions for the service of notice on every person who has an interest in the infringing goods, infringing material, or infringing object to which an application under section 113 relates.
Compare: 2002 No 49 s 112
Section 115: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
116 Rights of persons with interest in infringing goods, infringing material, or infringing object
Every person who has an interest in the infringing goods, infringing material, or infringing object to which an application under section 113 relates is entitled to—
(a)
appear in proceedings for an order under that section, whether or not the person is served with notice; and
(b)
appeal against any order made, whether or not the person appears in the proceedings.
Compare: 2002 No 49 s 113
Section 116: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
117 When order under section 113 takes effect
An order made under section 113 takes effect—
(a)
at the end of the period within which notice of an appeal may be given; or
(b)
on the final determination or abandonment of the proceedings on appeal.
Compare: 2002 No 49 s 114
Section 117: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
118 Miscellaneous court order if more than 1 person interested in infringing goods, infringing material, or infringing object
If more than 1 person is interested in the infringing goods, infringing material, or infringing object to which an application under section 113 relates, the court may—
(a)
direct that the infringing goods, infringing material, or infringing object be sold, or otherwise dealt with, and the proceeds divided; and
(b)
make any other order that it thinks fit.
Compare: 2002 No 49 s 115
Section 118: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
119 Position where no order made under section 113
If the court decides that no order should be made under section 113, the person in whose possession, custody, or control the infringing goods, infringing material, or infringing objects were before being delivered up is entitled to their return.
Compare: 2002 No 49 s 116
Section 119: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Infringement offence
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
120 Infringement offence for failure to comply with notice of direction
(1)
This section applies if—
(a)
a notice of direction given under section 96 has been served on a person; and
(b)
the chief executive has not been required under section 99 to review the notice.
(2)
The person must comply with the notice of direction within the time specified in the notice, or any further time allowed under section 96.
(3)
A person who contravenes subsection (2) commits an infringement offence and is liable to—
(a)
the infringement fee prescribed in the regulations; or
(b)
a fine imposed by a court not exceeding the amount prescribed in the regulations.
Compare: 2015 No 70 s 78
Section 120: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Procedure for infringement offences
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
121 Infringement offences
(1)
A person who is alleged to have committed an infringement offence may—
(a)
be proceeded against by the filing of a charging document under section 14 of the Criminal Procedure Act 2011; or
(b)
be issued with an infringement notice under section 122.
(2)
Proceedings commenced in the way described in subsection (1)(a) do not require the leave of a District Court Judge or Registrar under section 21(1)(a) of the Summary Proceedings Act 1957.
(3)
See section 21 of the Summary Proceedings Act 1957 for the procedure that applies if an infringement notice is issued.
Section 121: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
122 When infringement notice may be issued
A GI officer may issue an infringement notice to a person if the officer believes on reasonable grounds that the person is committing, or has committed, an infringement offence.
Section 122: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
123 Revocation of infringement notice before payment made
(1)
A GI officer may revoke an infringement notice before—
(a)
the infringement fee is paid; or
(b)
an order for payment of a fine is made or deemed to be made by a court under section 21 of the Summary Proceedings Act 1957.
(2)
The GI officer must take reasonable steps to ensure that the person to whom the notice was issued is made aware of the revocation of the notice.
(3)
The revocation of an infringement notice before the infringement fee is paid is not a bar to any further action as described in section 121(1)(a) or (b) against the person to whom the notice was issued in respect of the same matter.
Section 123: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
124 What infringement notice must contain
An infringement notice must be in the form prescribed in the regulations and must contain the following particulars:
(a)
details of the alleged infringement offence that fairly inform a person of the nature of the alleged offence, including, to any applicable extent, the time and place of the alleged offence:
(b)
the amount of the infringement fee:
(c)
the address of the Ministry:
(d)
how the infringement fee may be paid:
(e)
the time within which the infringement fee must be paid:
(f)
a summary of the provisions of section 21(10) of the Summary Proceedings Act 1957:
(g)
a statement that the person served with the notice has a right to request a hearing:
(h)
a statement of what will happen if the person served with the notice neither pays the infringement fee nor requests a hearing:
(i)
any other matters prescribed in the regulations.
Section 124: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
125 How infringement notice may be served
(1)
An infringement notice may be served on the person who the GI officer believes is committing or has committed the infringement offence by—
(a)
delivering it to the person or, if the person refuses to accept it, bringing it to the person’s notice; or
(b)
leaving it for the person at the person’s last known place of residence with another person who appears to be of or over the age of 14 years; or
(c)
leaving it for the person at the person’s place of business or work with another person; or
(d)
sending it to the person by prepaid post addressed to the person’s last known place of residence or place of business or work; or
(e)
sending it to an electronic address of the person in any case where the person does not have a known place of residence or business in New Zealand.
(2)
Unless the contrary is shown,—
(a)
an infringement notice (or a copy of it) sent by prepaid post to a person under subsection (1) is to be treated as having been served on that person on the fifth working day after the date on which it was posted; and
(b)
an infringement notice sent to a valid electronic address is to be treated as having been served at the time the electronic communication first entered an information system that is outside the control of the Ministry.
Section 125: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
126 Payment of infringement fees
All infringement fees paid for infringement offences must be paid into a Crown Bank Account designated by the chief executive.
Section 126: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
127 Reminder notices
A reminder notice must be in the form prescribed in the regulations and must include the same particulars, or substantially the same particulars, as the infringement notice.
Section 127: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Other offences
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
128 Hindering or obstructing GI officer
(1)
A person who intentionally hinders or obstructs a GI officer performing a function or duty, or exercising a power, under this Act commits an offence.
(2)
Without limiting what constitutes intentionally hindering or obstructing, intentionally hindering or obstructing includes failing to allow a GI officer to perform a function or duty or to exercise a power under this Act.
(3)
A person who commits an offence against this section is liable on conviction,—
(a)
for an individual, to a fine not exceeding $10,000:
(b)
in any other case, to a fine not exceeding $30,000.
Compare: 2014 No 32 s 235
Section 128: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
129 Offence involving documents or information
(1)
A person commits an offence if the person—
(a)
provides a document or information to a GI officer or a person performing a function or duty, or exercising a power, under this Act, in purported compliance with a requirement made under this Act; and
(b)
knows the document or information is false or misleading.
(2)
A person who commits an offence against this section is liable on conviction,—
(a)
for an individual, to a fine not exceeding $10,000:
(b)
in any other case, to a fine not exceeding $30,000.
Compare: 2014 No 32 s 226
Section 129: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Subpart 4—Border protection measures
Subpart 4: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Interpretation
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
130 Interpretation
In this subpart, unless the context otherwise requires,—
accepted notice means a notice given under section 133 that has been accepted by the chief executive under section 136
chief executive has the same meaning as in section 5(1) of the Customs and Excise Act 2018
claimant means a person who gives a notice under section 133
control of Customs is to be read in accordance with the definition of subject to the control of Customs in section 6 of the Customs and Excise Act 2018
Customs means the New Zealand Customs Service
Customs officer has the same meaning as in section 5(1) of the Customs and Excise Act 2018
exporter has the same meaning as in section 5(1) of the Customs and Excise Act 2018
importer has the same meaning as in section 5(1) of the Customs and Excise Act 2018.
Compare: 2002 No 49 s 135
Section 130: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Detention of suspected infringing goods
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
131 Detention of suspected infringing goods
(1)
Any goods in the control of Customs may be detained in the custody of the chief executive or a Customs officer if a Customs officer has reasonable cause to suspect that the goods are infringing goods.
(2)
The chief executive must, as soon as is reasonably practicable after the goods are detained, take reasonable steps to notify the detention to—
(a)
the registrant or, if there is no registrant, a person that appears to the chief executive to be a person with an interest in upholding the restrictions on use of the relevant registered geographical indication (to enable that person to consider whether to give a notice under section 133); and
(b)
the importer or exporter from whom the goods have been detained, if that person is identified but was not present when the detention took place.
(3)
The detention of any goods under subsection (1) is not rendered illegal by a failure to serve notice under subsection (2)(a) or (b).
Compare: 2002 No 49 s 135A
Section 131: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
132 Release of goods
(1)
The goods are no longer detained under section 131(1) if—
(a)
no notice under section 133 is given in respect of the goods within 3 working days after the date on which notice was given under section 131(2)(a); or
(b)
a notice under section 133 is given in respect of the goods within 3 working days after the date on which notice was given under section 131(2)(a) and—
(i)
the notice given under section 133 is subsequently accepted under section 136 and the goods are subsequently detained under section 147; or
(ii)
the notice given under section 133 is subsequently declined under section 136; or
(c)
the chief executive considers that it is not reasonably practicable for notice to be given under section 131(2)(a); or
(d)
the chief executive considers that there is no longer a reason to detain the goods.
(2)
The chief executive must release any goods no longer detained under section 131(1) to the person entitled to them.
(3)
However, the chief executive may release goods under subsection (2) only if the goods are not detained under section 147 and if—
(a)
every legal requirement as to the importation or exportation of the goods is satisfied; and
(b)
every requirement made under section 135 that requires the deposit of a security is satisfied; and
(c)
the release of the goods is not contrary to law.
Compare: 2002 No 49 s 135B
Section 132: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Notice of infringing goods
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
133 Notice may be given to chief executive
A person may give a notice in writing to the chief executive that—
(a)
claims that they have an interest in upholding the restrictions on use of a geographical indication that is registered in respect of the goods specified in the notice; and
(b)
requests the chief executive to detain any infringing goods that are in, or at any time come into, the control of Customs.
Compare: 2002 No 49 s 137
Section 133: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
134 Contents of notice
(1)
A notice under section 133 must—
(a)
contain particulars in support of the request; and
(b)
specify the period for which the notice is to be in force; and
(c)
be in the form approved by the chief executive (if any); and
(d)
include the full name, address, and telephone number of the claimant, their electronic address for service, and the relevant geographical indication and its registration number.
(2)
The period referred to in subsection (1)(b) must be—
(a)
not longer than 5 years from the date of the notice; or
(b)
if the registration of the geographical indication to which the notice relates will expire within the period of 5 years from the date of the notice, not longer than the period for which the current registration will last.
(3)
The claimant must provide evidence to the chief executive in support of the claim that the goods specified in the notice are infringing goods.
(4)
The chief executive may direct that the evidence must be provided when the notice is given or at any later time.
(5)
The claimant must give the chief executive written notice of any change in the particulars contained in the notice or in any evidence or other information given to the chief executive in support of the request made in the notice.
Compare: 2002 No 49 s 138; SR 2003/187 rr 157, 158
Section 134: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
135 Security and indemnity
(1)
A claimant must, if required by the chief executive, give security or an indemnity, or both security and an indemnity, for the amount, and on the terms and conditions, that the chief executive may decide.
(2)
The chief executive may direct that the security or indemnity, or both, must be given when the notice is given or at any later time.
(3)
A person to whom goods are to be, or have been, released under section 148 must, if required by the chief executive, give security or an indemnity, or both security and an indemnity, for the amount, and on the terms and conditions, that the chief executive may decide.
Compare: SR 2003/187 r 159
Section 135: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
136 Chief executive must accept or decline notice
The chief executive must, in relation to any notice given under section 133,—
(a)
either—
(i)
accept the notice if the claimant and the notice given by the claimant comply with the requirements of this subpart; or
(ii)
decline the notice if the claimant or the notice given by the claimant does not comply with the requirements of this subpart; and
(b)
within a reasonable period of receiving the notice, advise the claimant whether the notice has been accepted or declined.
Compare: 2002 No 49 s 139
Section 136: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
137 Chief executive may suspend accepted notice
(1)
The chief executive may suspend an accepted notice if the chief executive is satisfied that—
(a)
the information held in respect of the accepted notice is not correct or is no longer current; or
(b)
there has been a failure to comply with a requirement concerning the giving of security or an indemnity, or both; or
(c)
there has been a failure to comply with an obligation under an indemnity given for an amount in respect of the accepted notice.
(2)
Before suspending an accepted notice, the chief executive must—
(a)
give written advice to the claimant of the chief executive’s intention to suspend the accepted notice; and
(b)
include in or with the advice a statement of the chief executive’s reasons; and
(c)
give the claimant not less than 20 working days to respond; and
(d)
consider any response made by the claimant to the chief executive within the time allowed.
Compare: 2002 No 49 s 139A
Section 137: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
138 Notice of suspension
If the chief executive decides to suspend an accepted notice, the chief executive must give written notice of the suspension to the claimant.
Compare: 2002 No 49 s 139B
Section 138: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
139 Chief executive may reinstate accepted notice
The chief executive may reinstate an accepted notice suspended under section 137 if the chief executive is satisfied that the grounds for the suspension no longer apply.
Compare: 2002 No 49 s 139C
Section 139: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
140 Duration of accepted notice
(1)
An accepted notice remains in force for the period specified in the notice unless—
(a)
it is revoked by the claimant by notice in writing; or
(b)
the court orders, in proceedings under section 151, that the notice be discharged; or
(c)
the geographical indication to which the notice relates has been removed from the register.
(2)
However, an accepted notice is not in force during the period of any suspension under section 137.
Compare: 2002 No 49 s 140
Section 140: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Investigation where notice of infringing goods
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
141 Determination to conduct investigation
The chief executive may conduct an investigation in order to establish whether the goods appear to be infringing goods to which the notice relates if—
(a)
an accepted notice is in force; and
(b)
the chief executive considers that any goods that are in the control of Customs may be goods to which the notice relates.
Compare: 2002 No 49 s 143
Section 141: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
142 Claimant to provide information for investigation
For the purpose of an investigation under section 141, the chief executive may require the claimant, or any other person appearing to the chief executive to have an interest in the goods, to provide, within 10 working days, any information required by the chief executive.
Compare: 2002 No 49 s 144
Section 142: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
143 Limitations on requirement to supply information
(1)
The chief executive must not require any person to provide any information under section 142 unless the chief executive considers that the information is reasonably necessary for the purpose of an investigation under section 141.
(2)
Every person who is required to provide information under section 142 has the same privileges in relation to the giving of the information as witnesses have in any court.
(3)
If a person refuses or fails to provide information required by the chief executive under section 142, the chief executive may, subject to subsection (2), take that refusal or failure into account in forming any opinion under section 141 or in making any determination under section 144.
Compare: 2002 No 49 s 145
Section 143: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Chief executive’s determination
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
144 Chief executive’s determination
Whether or not the chief executive conducts an investigation, the chief executive must, within a reasonable period of forming an opinion under section 141, make a determination of whether the goods appear to be infringing goods to which the notice relates.
Compare: 2002 No 49 s 146
Section 144: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
145 Notice of determination
If the chief executive makes a determination under section 144, the chief executive must, within any period that may be reasonably necessary to effect service, cause written notice of the determination to be served on—
(a)
the claimant; and
(b)
any other person appearing to the chief executive to have an interest in the goods.
Compare: 2002 No 49 s 147
Section 145: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
146 Consequences of failure to serve notice
The detention of any goods under section 147 is not rendered illegal by a failure to serve notice under section 145.
Compare: 2002 No 49 s 148
Section 146: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Detention of infringing goods
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
147 Detention of infringing goods
(1)
If the chief executive considers that any goods that are in the control of Customs may be infringing goods to which an accepted notice relates, those goods must be detained in the custody of the chief executive or any Customs officer until—
(a)
the chief executive is served with an order made in proceedings under section 150 that the notice be discharged; or
(b)
the chief executive is served with an order made in proceedings under section 150 that the goods be released; or
(c)
any proceedings under section 151 in respect of those goods (including any appeal) are determined by a decision that the goods are not infringing goods; or
(d)
any proceedings under section 151 in respect of those goods, including any appeal, are abandoned; or
(e)
10 working days have elapsed since notice was served under section 145 and the chief executive has not been served with notice of proceedings brought under section 151 by a person other than the importer or exporter.
(2)
Subject to section 148, on the occurrence of any of the matters specified in subsection (1)(a) to (e), the goods must be released to the person entitled to them.
(3)
The chief executive may, in any particular case, extend the period referred to in subsection (1)(e) to 20 working days if the chief executive considers it appropriate to do so in all the circumstances.
Compare: 2002 No 49 s 149
Section 147: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
148 When detained goods may be released
The chief executive or any Customs officer must release any goods under section 147 if—
(a)
every legal requirement as to importation or exportation of the goods is satisfied; and
(b)
every requirement made under section 135 that requires the deposit of a security is satisfied; and
(c)
the release of the goods is not contrary to law.
Compare: 2002 No 49 s 150
Section 148: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
149 Forfeiture of goods by consent
(1)
If goods have been detained in the custody of the chief executive or a Customs officer, the importer or exporter of the goods may, by notice in writing to the chief executive, consent to the goods being forfeited to the Crown.
(2)
On the giving of a notice under subsection (1), the goods are forfeited to the Crown.
(3)
Goods forfeited to the Crown under this section must be sold, destroyed, or otherwise disposed of in the manner that the chief executive directs.
(4)
However, the chief executive must not direct a step to be taken under subsection (3) without first having regard to the need to ensure that the step to be taken does not adversely affect the claimant.
Compare: 2002 No 49 s 151; SR 2003/187 r 160
Section 149: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Proceedings relating to infringing goods
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
150 Application for various orders relating to infringing goods
The court may, on an application by any person, make an order that—
(a)
an accepted notice be discharged; or
(b)
goods detained under section 147 be released.
Compare: 2002 No 49 s 152
Section 150: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
151 Proceedings to determine whether goods are infringing goods
(1)
The court may, on an application by any person, decide whether goods to which a determination under section 144 relates are infringing goods.
(2)
Notice of proceedings under subsection (1) must be served on the chief executive.
(3)
In proceedings under subsection (1),—
(a)
the court must issue directions as to the service of notice on every person who has an interest in goods to which the proceedings relate; and
(b)
a person who is served a notice is entitled to—
(i)
appear in those proceedings, whether or not the person was served with notice under section 145; and
(ii)
appeal against any order made in those proceedings, whether or not the person appeared in the proceedings.
(4)
An order made in proceedings under subsection (1) takes effect—
(a)
at the end of the period within which notice of an appeal may be given; or
(b)
on the final determination or abandonment of the proceedings on appeal (if notice of the appeal is given before the end of that period).
Compare: 2002 No 49 s 153
Section 151: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
152 Powers of court
(1)
If, in proceedings under section 151, the court decides that any goods that are the subject of a determination made under section 144 are infringing goods, the court must make an order that the goods be—
(a)
destroyed; or
(b)
otherwise dealt with as the court thinks fit.
(2)
In considering what order should be made under subsection (1), the court must consider—
(a)
whether other remedies available in proceedings for infringement of a registered geographical indication would be adequate to compensate, and to protect the interests of, the claimant; and
(b)
the need to ensure that no infringing goods are disposed of in a manner that would adversely affect the claimant.
(3)
If more than 1 person is interested in the goods, the court may—
(a)
direct that the goods be sold or otherwise dealt with, and the proceeds divided; and
(b)
make any other order it thinks fit.
(4)
If, in proceedings under section 151, the court decides that the goods are not infringing goods to which a determination under section 144 relates, the court may make an order that a person who is a party to the proceedings pay compensation in such amount as the court thinks fit to the importer, exporter, or owner of the goods.
Compare: 2002 No 49 s 154
Section 152: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Inspection of goods
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
153 Inspection of goods
(1)
The chief executive or a Customs officer must permit a person who claims to have an interest in goods or proceedings to which section 141 or 151 applies to inspect the goods if the chief executive or Customs officer has, in their possession, goods to which any of the following apply:
(a)
a notice given under section 133:
(b)
an investigation under section 141:
(c)
proceedings under section 151.
(2)
A person who claims to have an interest in goods may—
(a)
inspect the goods during normal office hours; or
(b)
with the approval of the chief executive or Customs officer, remove the goods or a sample of the goods to a place, for a specified period, and on any conditions specified by the chief executive or Customs officer for the purpose of inspecting them.
(3)
Any person who wishes to inspect any goods under this section must give the chief executive or Customs officer not less than 72 hours’ notice of their intention to inspect those goods, or any lesser notice period specified by the chief executive or Customs officer for that purpose.
Compare: 2002 No 49 s 155
Section 153: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Service under this subpart
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
154 Service of notices under this subpart
(1)
The chief executive, or a Customs officer, may give notice or written advice under this subpart by sending it by electronic means to the person’s contact electronic address.
(2)
For the purposes of this section, a person’s contact electronic address is any of the following:
(a)
an email or other electronic address that the person has provided to Customs:
(b)
the person’s last known email or other electronic address:
(c)
an email or other electronic address of the person that is otherwise available, if there are reasonable grounds to suppose that the person will receive the communication.
(3)
For the purposes of this subpart, a notice or written advice is treated as having been given on the first working day following the day on which it was sent by electronic means.
(4)
In proving the giving of notice or written advice by electronic means, it is sufficient to prove that the notice or written advice was properly transmitted to the contact electronic address in question.
(5)
A notice or written advice is not to be treated as having been given to a person if that person proves that, through no fault on their part, the notice or written advice was not received within the time specified or at all.
Compare: 2018 No 4 ss 423–426
Section 154: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Subpart 5—Protection from civil and criminal liability
Subpart 5: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
155 Protection from civil and criminal liability
(1)
A specified person is protected from civil and criminal liability, however it may arise, for any act that the person does or omits to do—
(a)
under a requirement of this Act; or
(b)
in the performance or purported performance of the person’s functions or duties, or the exercise or purported exercise of the person’s powers, under a requirement of this Act—
(i)
in good faith; and
(ii)
with reasonable cause; or
(c)
in the performance or purported performance of the person’s functions or duties, or the exercise or purported exercise of the person’s powers, under this Act—
(i)
in good faith; and
(ii)
with reasonable cause.
(2)
See also section 6(1) of the Crown Proceedings Act 1950 (which relates to the liability of the Crown in tort).
(3)
In this section,—
specified person means—
(a)
a relevant chief executive:
(b)
an employee or agent of a relevant Ministry:
(c)
a GI officer:
(d)
a person lawfully assisting a GI officer:
(e)
a Customs officer (within the meaning of subpart 4):
(f)
a person lawfully assisting a Customs officer under that subpart.
Compare: 2014 No 32 s 351
Section 155: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Part 6 General provisions
Part 6: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Regulations
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
156 Regulations
(1)
The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
(a)
prescribing the form of, and the requirements relating to, applications under this Act:
(b)
prescribing the procedure for dealing with an application for registration of a geographical indication:
(c)
prescribing the procedure relating to the removal of a registered geographical indication from the register:
(d)
prescribing the procedure relating to the alteration of a geographical indication on the register:
(e)
prescribing the procedure relating to the alteration of the name and address of an applicant or a registrant (including the substitution of information relating to an applicant or a registrant):
(f)
prescribing the procedure for any hearing under this Act:
(g)
prescribing time and extensions of time in respect of any matters under this Act:
(h)
specifying conditions relating to 1 or more New Zealand registered or foreign registered geographical indications:
(i)
prescribing penalties for infringement offences in this Act, which,—
(i)
in the case of infringement fees, must not be more than $1,000; and
(ii)
in the case of maximum fines, must not be more than 3 times the amount of the infringement fee for the offence:
(j)
prescribing the matters in respect of which fees are payable under this Act, the amounts of the fees or the methods by which they are to be assessed, and the person to whom the fees are to be paid:
(k)
giving effect, for the purposes of this Act, to the terms of any international agreement:
(l)
providing for anything this Act says may or must be provided for by regulations:
(m)
providing for anything incidental that is necessary for carrying out, or giving full effect to, this Act.
(2)
The Governor-General may prescribe any renewal fees under subsection (1)(j) that—
(a)
recover some or all of the costs incurred by the Registrar in performing the Registrar’s functions under this Act:
(b)
recover those costs at a level that provides an incentive to allow registrations of geographical indications to expire if persons interested in the registration no longer find registration beneficial.
(3)
Regulations made under this section are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
| Legislation Act 2019 requirements for secondary legislation made under this section | ||||
| Publication | PCO must publish it on the legislation website and notify it in the Gazette | LA19 s 69(1)(c) | ||
| Presentation | The Minister must present it to the House of Representatives | LA19 s 114 | ||
| Disallowance | It may be disallowed by the House of Representatives | LA19 ss 115, 116 | ||
| This note is not part of the Act. | ||||
Section 156: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Registrar
Header: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
157 Registrar
(1)
The chief executive of the Ministry must, under the Public Service Act 2020, appoint a Registrar of Geographical Indications.
(2)
The Registrar must be an officer or employee of the Ministry, and the Registrar’s appointment may be held either separately or in conjunction with any other office in the Ministry.
Section 157: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
158 Registrar’s seal
(1)
The Registrar must have and use a seal of office bearing the impression of the New Zealand Coat of Arms and having inscribed in the margin the words Registrar of Geographical Indications, New Zealand.
(2)
Every document bearing the imprint of the Registrar’s seal of office and purporting to be signed or issued by the Registrar, or by a person employed to assist the Registrar in the exercise of the Registrar’s functions under this Act,—
(a)
must be received in evidence; and
(b)
in the absence of proof to the contrary, must be treated as having been signed or issued by or under the direction of the Registrar.
Section 158: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
159 Power of Registrar to delegate
(1)
The Registrar may delegate to any person any of the Registrar’s functions, duties, and powers, except this power of delegation.
(2)
The delegation—
(a)
must be in writing; and
(b)
may be made subject to any restrictions and conditions that the Registrar thinks fit; and
(c)
is revocable, at any time, in writing; and
(d)
does not prevent the performance or exercise of a function, duty, or power by the Registrar.
(3)
A person to whom any functions, duties, or powers are delegated may perform those functions and duties and exercise those powers in the same manner and with the same effect as if they had been conferred directly by this Act and not by delegation.
(4)
A person who appears to act under a delegation must, in the absence of evidence to the contrary, be presumed to be acting in accordance with the terms of the delegation.
(5)
Any reference to the Registrar in this Act (or in regulations made under this Act) includes a reference to a person to whom the Registrar has delegated their power in respect of a thing delegated to that person.
Section 159: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
160 Hearing before exercise of Registrar’s discretion
(1)
The Registrar must not, without giving an interested person an opportunity of being heard, adversely exercise any discretionary or other power under this Act or regulations made under this Act in relation to—
(a)
a registered geographical indication; or
(b)
a New Zealand or foreign geographical indication that is the subject of an application for registration under section 8; or
(c)
an EU FTA geographical indication that is the subject of a request for registration referred to in section 58(1).
(2)
Regulations may prescribe the procedure for the opportunity to be heard.
Section 160: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Register of geographical indications
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
161 Register of geographical indications
(1)
The Registrar must establish and maintain a register of registered geographical indications.
(2)
The register must contain 4 parts, as follows:
(a)
Part 1, for enduring New Zealand geographical indications:
(b)
Part 2, for—
(i)
New Zealand registered geographical indications:
(ii)
foreign registered geographical indications:
(c)
Part 3, for geographical indications that have been registered in accordance with regulations made under section 156(1)(k):
(d)
Part 4, for EU FTA registered geographical indications.
(3)
The register must specify, in respect of each registered geographical indication in Parts 1 to 3 of the register,—
(a)
whether it relates to a wine or a spirit or to both; and
(b)
its boundaries, unless it is a foreign registered geographical indication (including a foreign registered geographical indication in Part 3 of the register); and
(c)
any conditions that relate to it; and
(d)
the name and address of the registrant; and
(e)
the date of registration (except in the case of an enduring New Zealand geographical indication); and
(f)
if the geographical indication’s status is registered-past expiry date (as defined in section 47D), a statement to that effect.
(4)
The register must specify, in respect of each registered geographical indication in Part 4 of the register,—
(a)
the product class to which the geographical indication relates (as specified in Annex 18-A of the EU FTA); and
(b)
for any geographical indication registered under—
(i)
section 57, any conditions (as specified in connection with the geographical indication in Annex 18-B of the EU FTA) imposed in accordance with section 72; or
(ii)
clause 2 of Schedule 1, any conditions, limitations, restrictions, exceptions, or transitional provisions that relate to the geographical indication, as specified in Annex 18-B of the EU FTA; and
(c)
any transliteration specified in connection with the geographical indication in Annex 18-B of the EU FTA; and
(d)
the date of registration.
(5)
Annex 18-A or 18-B of the EU FTA, as the case requires, prevails to the extent of any inconsistency with the register in respect of an EU FTA registered geographical indication.
(6)
The register may be kept in any manner that the Registrar thinks fit provided it permits the contents to be readily accessed or reproduced in usable form.
(7)
The register is prima facie evidence of any matters required or authorised by or under this Act to be entered in it.
Section 161: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
162 Public access to register
(1)
Any person may access or search the register, or make copies of information in the register, except to the extent that the Registrar suspends its operation in accordance with subsection (2).
(2)
The register must be operated at all times unless the Registrar suspends its operation (in whole or in part)—
(a)
for maintenance purposes; or
(b)
in response to technical difficulties; or
(c)
to ensure the security or integrity of the register.
(3)
The Registrar must provide a copy, or a certified copy, of any particulars on the register to any person who applies for it and pays the prescribed fee (if any).
(4)
A certified copy of particulars on the register signed by the Registrar and sealed with the Registrar’s seal is conclusive evidence for all purposes that the particulars on the certified copy have been duly registered.
Section 162: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
163 Registrar may correct obvious errors or omissions
If satisfied that there is an obvious error in, or omission from, the register, the Registrar may correct it.
Section 163: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Appeals
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
164 Appeals in relation to Registrar’s decisions
(1)
A person who is aggrieved by a decision of the Registrar under this Act may appeal to the court.
(2)
In this section and sections 165, 167, and 168, decision includes a determination by the Registrar under section 58(3) or (4).
Section 164: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
165 Notice of appeal
Notice of an appeal under section 164 must be filed in the court and served on the Registrar within 20 working days after the date on which the decision appealed against was given.
Section 165: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
166 Hearing of appeal
(1)
On an appeal, the court must hear the Registrar and the parties.
(2)
An appeal must be heard only on the materials stated by the Registrar unless a party, either in the manner prescribed or by leave of the court, brings forward further material for the consideration of the court.
(3)
In the case of an appeal against the acceptance of an application for registration of a geographical indication, or the registration of a geographical indication,—
(a)
no further grounds are permitted by the person opposing the application or registration, other than those stated by the person opposing, except with the permission of the court; and
(b)
if further grounds of objection are permitted, the applicant for registration may, on giving notice as prescribed in regulations, withdraw the application without paying the costs of the person opposing.
Section 166: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
167 Determination of appeal
In determining an appeal, the court may—
(a)
confirm, modify, or reverse the Registrar’s decision or any part of it:
(b)
exercise any of the powers that could have been exercised by the Registrar in relation to the matter to which the appeal relates.
Section 167: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
168 Provisions pending determination of appeal
The decision to which an appeal under this Act relates remains in full force pending the determination of the appeal unless the court orders otherwise.
Section 168: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Advice and consultation
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
169 Registrar may obtain advice and consult
If the Registrar thinks it necessary, the Registrar may obtain advice on, and may consult about, any matter relating to—
(a)
an application for the registration of a geographical indication, including opposition to an accepted application; or
(b)
the registrability of a geographical indication; or
(c)
alterations to a registered geographical indication; or
(d)
the removal of a registered geographical indication from the register; or
(e)
a request by the European Union for registration of an EU FTA geographical indication referred to in section 58(1).
Section 169: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
170 Function of advisory committee appointed under Trade Marks Act 2002
It is a function of an advisory committee appointed under section 177(1) of the Trade Marks Act 2002 to advise the Registrar whether the use of a geographical indication in relation to wine or spirits or other goods, or the registration of the geographical indication, is, or is likely to be, offensive to Māori.
Section 170: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Miscellaneous provisions
Heading: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
171 Recognition of agents
(1)
Anything that must be done by or to a person under this Act in relation to a geographical indication may be done by or to the person’s expressly authorised agent.
(2)
Subsection (1) applies only if the agent is not a person whom the Registrar refused to recognise as an agent in accordance with section 172.
Section 171: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
172 Registrar may refuse to recognise person as agent
(1)
The Registrar may refuse to recognise a person as an agent if that person—
(a)
is suspended from practice before the Intellectual Property Office of New Zealand; or
(b)
has their registration as a patent attorney suspended or cancelled; or
(c)
has been removed from or struck off the roll of barristers and solicitors under the provisions of the Lawyers and Conveyancers Act 2006, and has not been restored to the roll; or
(d)
is suspended from practice as a barrister or solicitor; or
(e)
has been convicted in New Zealand of an offence specified in Part 10 (except section 298A) of the Crimes Act 1961 or has been convicted of an equivalent offence in another country.
(2)
If the Registrar refuses to recognise a person as an agent, the Registrar must, as soon as practicable, notify that person and the person’s principal in writing.
Section 172: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
173 Act does not affect unregistered geographical indication
Nothing in this Act affects a geographical indication that is not a registered geographical indication.
Section 173: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
174 Act does not affect Wine Act 2003
Nothing in this Act affects the operation of the Wine Act 2003.
Section 174: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
175 Act does not affect joint food standards
Nothing in this Act affects the operation of any joint food standard adopted under the Food Act 2014.
Section 175: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
176 Act does not limit Fair Trading Act 1986
Nothing in this Act limits the operation of the Fair Trading Act 1986.
Section 176: inserted, on 1 May 2024, by section 85 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Schedule 1 Transitional, savings, and related provisions
Schedule 1: replaced, on 1 May 2024, by section 86 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Part 1 Provisions relating to European Union Free Trade Agreement Legislation Amendment Act 2024
Schedule 1 Part 1: inserted, on 1 May 2024, by section 86 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
1 References to previous Title
Every reference in any enactment and in any document to the Geographical Indications (Wine and Spirits) Registration Act 2006 must, unless the context otherwise provides, be read as a reference to the Geographical Indications Registration Act 2006.
Schedule 1 clause 1: inserted, on 1 May 2024, by section 86 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
2 Registration of geographical indications listed in EU FTA
(1)
The Registrar must, as soon as practicable, register all EU FTA geographical indications listed in Section A of Annex 18-B of the EU FTA on the commencement of this clause.
(2)
An EU FTA registered geographical indication registered under this clause is deemed to be registered on and after the date of entry into force of the EU FTA.
(3)
All conditions, limitations, restrictions, exceptions, transitional provisions, and other requirements specified in Section A of Annex 18-B of the EU FTA, as it reads on the commencement of this clause,—
(a)
apply to an EU FTA geographical indication registered under this clause; and
(b)
must be specified in Part 4 of the register established under section 161 in respect of the EU FTA geographical indication.
(4)
Sections 57 to 59 and 62 to 72 do not apply to the registration of an EU FTA geographical indication under this clause.
Example
Feta is listed in section A of Annex 18-B of the EU FTA on the commencement of this clause. Accordingly, the Registrar must register it as an EU FTA registered geographical indication, which provides protection for the geographical indication.
Section A of Annex 18-B includes a transitional provision for feta, which allows certain existing users of that geographical indication to continue using it for a maximum period of 9 years after the date of entry into force of the EU FTA.
Compare: EU FTA art 18.32.3
Schedule 1 clause 2: inserted, on 1 May 2024, by section 86 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
3 Registration of foreign registered geographical indication as EU FTA geographical indication
A foreign registered geographical indication that is listed in Section A of Annex 18-B of the EU FTA on the commencement of clause 2 must be registered as an EU FTA registered geographical indication under that clause.
Schedule 1 clause 3: inserted, on 1 May 2024, by section 86 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
4 Transitional regulations
(1)
Regulations may provide for transitional or savings matters concerning the coming into force of the amendment Act.
(2)
The regulations may be in addition to, or in place of, the provisions in this Part of this schedule.
(3)
The regulations may provide that, during a specified transitional period,—
(a)
specified provisions of this Act do not apply or apply with modifications:
(b)
specified provisions of this Act that are repealed or amended by the amendment Act continue to apply as if they were not repealed or amended (with or without modifications).
(4)
The Minister must not recommend that regulations be made for the purpose of this clause unless the Minister is satisfied on reasonable grounds that they are necessary to—
(a)
give effect to New Zealand’s obligations under the EU FTA, as at the commencement of this clause, with respect to geographical indications; or
(b)
facilitate an orderly transition from the geographical indications regime that existed before commencement of the amendment Act to the regime existing after commencement of the amendment Act.
(5)
This clause is repealed, and any regulations made in reliance on it are revoked, on the close of the 5-year date.
(6)
In this clause,—
5-year date means the date that is 5 years after the date on which this clause comes into force
amendment Act means the European Union Free Trade Agreement Legislation Amendment Act 2024.
Schedule 1 clause 4: inserted, on 1 May 2024, by section 86 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Schedule 2 Provisions relating to reviews and appeals
Schedule 2: inserted, on 1 May 2024, by section 86 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Review of decision to suspend or cancel appointment as GI officer
Heading: inserted, on 1 May 2024, by section 86 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
1 Procedure for review
(1)
The reviewer must be,—
(a)
for a decision made by the chief executive, a person appointed for the purpose by the Minister under subclause (2):
(b)
for a decision made by a person acting under the delegated authority of the chief executive,—
(i)
a person who was not involved in making the decision and who is designated by the chief executive; or
(ii)
the chief executive.
(2)
The Minister may appoint the person referred to in subclause (1)(a) on any terms and conditions that the Minister considers appropriate (including conditions as to the payment of fees).
(3)
The reviewer must review the decision within—
(a)
40 working days after the appointment referred to in subclause (1)(a), if that paragraph applies; or
(b)
40 working days after the designation referred to in subclause (1)(b)(i), if that subparagraph applies; or
(c)
40 working days after the date on which the chief executive receives the application, if subclause (1)(b)(ii) applies; or
(d)
a shorter period specified in writing by the reviewer to the applicant.
(4)
The reviewer may give the applicant a notice in writing requiring the applicant to supply information additional to that contained in the application within a time specified by the reviewer.
(5)
The time limits specified in subclause (3) do not include—
(a)
the time the applicant takes to supply information under subclause (4); or
(b)
the time allowed for the applicant to supply the information, if the applicant does not supply it.
(6)
The reviewer must—
(a)
give the applicant and the chief executive (or the person who made the decision under delegated authority) a notice in writing of the time within which submissions on the review may be made; and
(b)
consider any submissions by the applicant and the chief executive (or the chief executive’s delegate).
(7)
The review is by way of a rehearing.
(8)
The reviewer may confirm, modify, or reverse all or some of the decision.
(9)
The reviewer must, as soon as practicable, give the applicant a notice in writing of—
(a)
the decision on the review; and
(b)
the reasons for the decision on the review.
Compare: 2014 No 32 s 357
Schedule 2 clause 1: inserted, on 1 May 2024, by section 86 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
2 Effect of review
(1)
The original decision described in section 81(1) or (3) is valid until the reviewer modifies or reverses it.
(2)
If the reviewer modifies or reverses some of the original decision, the parts that are not modified or reversed remain valid.
Compare: 2014 No 32 s 359
Schedule 2 clause 2: inserted, on 1 May 2024, by section 86 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Appeals against decision under clause 1 or section 99
Heading: inserted, on 1 May 2024, by section 86 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
3 Meaning of review decision
In clause 4, review decision means—
(a)
a decision under clause 1 (which relates to a review of a decision to suspend or cancel appointment as a GI officer):
(b)
a decision under section 99 (which relates to a review of a notice of direction).
Schedule 2 clause 3: inserted, on 1 May 2024, by section 86 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
4 Appeal to District Court against review decision
(1)
A person may appeal to the District Court against a review decision.
(2)
An appeal under subclause (1) must be brought no later than 28 days after the date on which the appellant was notified under this Act of the review decision.
(3)
In considering an appeal,—
(a)
the District Court may hear all evidence tendered and representations made by, or on behalf of, any party to the appeal that the court considers relevant to the appeal, whether or not that evidence would be otherwise admissible in the court; and
(b)
the court may—
(i)
confirm, reverse, or modify the decision appealed against, and make the orders and give the directions that may be necessary to give effect to the court’s decision; or
(ii)
refer the matter back to the chief executive with a direction to reconsider the whole or any part of the matter.
Compare: 2014 No 32 s 362
Schedule 2 clause 4: inserted, on 1 May 2024, by section 86 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
5 Procedure for appeal
(1)
An appeal under clause 4 must, subject to that clause, be made and determined in accordance with the District Court Act 2016 and the District Court Rules 2014.
Compare: 2014 No 32 s 363
Schedule 2 clause 5: inserted, on 1 May 2024, by section 86 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
6 Appeal to High Court on question of law
(1)
A party to an appeal under clause 4 who is dissatisfied with the decision of the District Court on the ground that it is wrong in law may appeal to the High Court on that question of law.
(2)
The High Court Rules 2016 and sections 126 to 130 of the District Court Act 2016, with all necessary modifications, apply to an appeal under subclause (1) as if it were an appeal under section 124 of that Act.
Compare: 2014 No 32 s 364
Schedule 2 clause 6: inserted, on 1 May 2024, by section 86 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
7 Further appeals to Court of Appeal or Supreme Court
(1)
With the leave of the court appealed to, a party to an appeal under clause 6 may appeal to the Court of Appeal or the Supreme Court against any determination of the High Court in the appeal.
(2)
On an appeal under this clause, the Court of Appeal or the Supreme Court has the same power to adjudicate on the proceedings as the High Court had.
(3)
Subclause (1) is subject to section 75 of the Senior Courts Act 2016 (which provides that the Supreme Court must not give leave to appeal directly to it against a decision made in a court other than the Court of Appeal unless it is satisfied that there are exceptional circumstances that justify taking the proposed appeal directly to the Supreme Court).
Compare: 2014 No 32 s 365
Schedule 2 clause 7: inserted, on 1 May 2024, by section 86 of the European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10).
Notes
1 General
This is a consolidation of the Geographical Indications Registration Act 2006 that incorporates the amendments made to the legislation so that it shows the law as at its stated date.
2 Legal status
A consolidation is taken to correctly state, as at its stated date, the law enacted or made by the legislation consolidated and by the amendments. This presumption applies unless the contrary is shown.
Section 78 of the Legislation Act 2019 provides that this consolidation, published as an electronic version, is an official version. A printed version of legislation that is produced directly from this official electronic version is also an official version.
3 Editorial and format changes
The Parliamentary Counsel Office makes editorial and format changes to consolidations using the powers under subpart 2 of Part 3 of the Legislation Act 2019. See also PCO editorial conventions for consolidations.
4 Amendments incorporated in this consolidation
European Union Free Trade Agreement Legislation Amendment Act 2024 (2024 No 10): Part 3
Te Ture mō te Hararei Tūmatanui o te Kāhui o Matariki 2022/Te Kāhui o Matariki Public Holiday Act 2022 (2022 No 14): wehenga 7/section 7
Secondary Legislation Act 2021 (2021 No 7): section 3
Regulatory Systems (Economic Development) Amendment Act 2019 (2019 No 62): sections 43–47
Geographical Indications (Wine and Spirits) Registration Act Commencement Order 2017 (LI 2017/145)
Geographical Indications (Wine and Spirits) Registration Amendment Act 2016 (2016 No 91)
Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013 (2013 No 19): section 8
Geographical Indications Act 1994 Repeal Order 2008 (SR 2008/64): clause 2
Amendments not yet incorporated
The most recent version of this Act does not yet have amendments incorporated from: