Perhaps I am just over-excited, but I’m going out on a limb here and declaring Zespri Group Ltd v Gao [2020] NZHC 109 the must-read IP decision of 2020. Yes, already. Even if it’s appealed, it is unlikely that the appeal decision will have the same immediacy or impact. By New Zealand case law standards (at least outside of the criminal law), this one is essentially a John LeCarré...
I know, I know – we are all intellectual property specialists; we have the words ‘intellectual property’ sprinkled liberally throughout our websites; we read intellectual property articles and cases; we go to intellectual property conferences…. And yet. “Intellectual property” is just a catch-all, a voluminous handbag filled with largely unrelated items, some...
Few things make my blood boil like those maggoty-sacks-of-offal who prey on the vulnerable. Volunteering at the Māngere Community Law Centre many years ago (via the Russell McVeagh programme) introduced me to all manner of sharks in our midst. I’m thinking of the pay-day lenders with their punitive interest rates and nasty default clauses. And the car dealers who sell lemons at high...
Section 17(1)(a), which prohibits registration of a trade mark if its use is likely to deceive or cause confusion, is a funny provision in terms of onus. An opponent relying on an earlier mark must meet an initial threshold test of showing that the earlier mark has a sufficient reputation, and if it can do so then the onus of proof flips to the trade mark applicant. Traditionally, that initial...
The other day one of our kids asked, “Mum, if you love Oliver Sacks so much, why don’t you marry him?” Well, quite a number of reasons really. Sadly, he’s now dead. And he was gay. And too old for me. Plus, unilateral adulation isn’t the healthiest basis for a relationship. And he did have his demons – he was a complicated person. Also, I already...
Good news for parties looking to set up a quick and hopefully-not-too-dirty private IP dispute resolution procedure – they seem to work. The High Court has scrutinised one such arrangement carefully, in the context of an application to set aside a statutory demand for damages and costs flowing from the decision of an independent expert IP lawyer, and it all stacked up (Beacham Parts &...
If I’m honest, part of the reason I came back to the Bar after nearly six years hearing cases at IPONZ was that I was a bit lonely. I really did like lots of things about that role. I loved running hearings, and I got huge satisfaction from the way patiently untangling each aspect of the law and the facts would usually lead to a clear overall answer. It seemed like magic – the slow...
Applications for non-use are all about making sure that the owner has crossed every t and dotted every i. The owner’s evidence is put under the microscope. Has it shown evidence of use that relates unequivocally to the right period? The right jurisdiction? The right goods and services? Is the mark used in the same form as the mark that is on the register? And...
I am a little anxious about this post. Am I about to stick a knife into a sacred cow? Will it attack me? So I’ll dive straight in: I don’t think patent examination hearings really work in many instances. The structure and the system don’t match the skill-sets of the people involved. Let’s think about what happens when you file a patent application. The patent...
Who is coming along to the inaugural women in IP casual catch up event? It is at Lula’s at the Auckland Viaduct from 5.30pm on 10 September 2019 – big thanks to Laura Carter for getting this organised. In celebration, I thought I would post about some of the practical, tangible obstacles that face women in the law – leaving aside for now attitudinal issues such as unconscious bias. ...