Chapman Tripp - Resource Library - Doing Business in New Zealand


Contents

	Introduction
	About Chapman Tripp
	Why do business in New Zealand?
	Overview
		Geography Climate People Government Legal system Currency Infrastructure Business conditions Holidays Living in New Zealand Cost of living
	Economy
		Major industries Markets Trade agreements Economic position Economic policies
	Starting up business
		Type of business Corporate structure options Branch or subsidiary? Government consents
	Immigration
		Entry requirements Temporary employment for foreign nationals New Zealand residence Immigration policy Returning residents' visa
	Buying and developing land and property
		Title Contracts for sale and purchase of land Resource Management Act and district plans The Building Act 1991 Barriers to buying land Maori land claims
	Taxation
		Overview Income tax Goods and Services Tax Import duties Rates Other taxes
	Finance
		Reserve Bank Financial institutions Financial markets Raising finance Repatriation of funds
	Regulations affecting business
		The Commerce Act The Fair Trading Act
	Intellectual property
	Labour and employment
		Employment Relations Act Working conditions

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Intellectual Property

In common with most Western countries, interest in intellectual property law has increased in New Zealand in recent years. New Zealand’s intellectual property laws are derived historically from English legislation and common law. In recent years, our intellectual property laws have also been influenced by international developments, including the TRIPs Agreement.

Currently the Government is drafting a new Patents Act and will be introducing changes to the Copyright Act as it applies to digital technology. Amendments have also been made to the statute protecting plant varieties and a new Act has been introduced to protect wines and spirits geographical indications.

Copyright
The New Zealand Copyright Act grants the exclusive rights to:

	copy a work (including, in relation to some works, storing the work in any medium by any means)
	issue copies of the work to the public
	play, perform, or show certain works in public
	broadcast the work (or include the work in a cable programme)
	make an adaptation of the work, and authorise another party to do any of these acts.

Works that can be subject to copyright include:

	literary works (including computer programs)
	dramatic works
	artistic works (which may include drawings, moulds, dies etc, for utilitarian items, such as machinery or clothing)
	musical works
	sound recordings
	television broadcasts, films and cable programmes.

To qualify for protection, a work must be original.

In accordance with the Berne Convention (New Zealand is a signatory) copyright vests as soon as the work is created. A work does not need to be registered to gain protection.

The copyright in literary, dramatic, musical and artistic works generally lasts for the life of the author plus 50 years. Unlike in some countries, there is no bar in New Zealand copyright law against protection for industrially applied artistic works. However, the copyright term for industrially applied three-dimensional works is usually 16 years. Protection for “works of artistic craftsmanship” lasts for 25 years. For other works, copyright generally lasts for 50 years.

Public performances of various kinds may also be the subject of separate protection given in certain circumstances to performers (but not the performance of sporting activities). In addition, New Zealand Copyright Act protects “moral rights”, which (depending on the circumstances) may include:

	a right to be identified as the author
	a right to object to derogatory treatment of a work
	a right against being falsely attributed as the author of a work.

Under New Zealand law, moral rights are not assignable. However, they can be waived.

Patents
Under the New Zealand Patents Act, the owner of a patent can prevent others from making, using or selling a patented invention (which can include a manufacturing process) for 20 years from the date of the patent. However a new exception permits third parties to do things “reasonably related” to developing and submitting information required by regulatory agencies in respect of products. For example, a generic pharmaceutical manufacturer could begin obtaining clinical approvals for the generic product before expiry of the patent.

The New Zealand Patent Office has recently recognised “Swiss-type” patent claims in the pharmaceutical area where a new therapeutic use is found for existing drugs.

Registered designs
New and original industrial designs are registrable under the Designs Act if their shape, configuration, pattern, or ornamentation has visual appeal. However, because the Copyright Act protects industrially applied artistic works and useful articles in New Zealand, some businesses are content to rely on the protection given by copyright law only (although there are advantages to gaining registered protection under the Designs Act).

Under the Designs Act, the period of protection is for an initial five years, with rights of renewal for two further five-year periods.

Trade marks
Trade marks may be registered under the Trade Marks Act 2002 (for goods and services). Once a trade mark is registered, the proprietor has the exclusive right to use the trade mark in relation to the goods and/or services for which it was registered.

The Act permits comparative advertising involving registered trade marks, except where the advertisements are “unfair” to the reputation of the mark. The Act also introduces “anti-dilution” provisions to prevent unfair use of registered marks in relation to goods and services which are dissimilar to those for which the mark is registered. Marks involving Maori language or symbols must be referred to a special committee for consideration.

Business names
Unlike Australia, there is no register of business names in New Zealand.

Company names
On incorporation, a company name will not be approved if it is identical (or nearly identical) to an existing company name. Registering a company or reserving a company name gives no right to use the name as a trade mark, and provides no defence to infringement of third party trade mark rights. (This is also the case in respect of domain names).

Domain names
Regional domain names, such as “.co.nz” and “.govt.nz”, are registrable in New Zealand. New Zealand courts have protected businesses against “cyber squatting” in some instances. In so doing, New Zealand courts have relied on principles developed in English and United States courts.

Domain name disputes may be subject to a dispute resolution service conducted by the Domain Name Commissioner, part of InternetNZ. See
www.dnc.org.nz.

Passing Off
The law of passing off may also be invoked to protect business goodwill and is frequently used for the protection of trade marks (whether or not registered), names, logos, packaging designs and shapes. The principles are similar to those that have been developed in English and Australian common law.

Parallel importation
Under amendments to the Copyright Act that came into force in 1998, importers can import lawfully made goods from foreign countries in commercial quantities without infringing the copyright of the “official” distributor in New Zealand, or of the overseas manufacturer. However, the prohibition against importing pirated goods, which were not made with the copyright owner’s consent, remains in force.

An amendment to the Copyright Act in 2003 has restricted the parallel importation of films for a period of up to nine months after their initial international release, and reversed some elements of the burden of proof in importation infringement proceedings to assist in preventing the importation of pirated goods.

Confidential information
Under New Zealand law, certain types of confidential information may be protected. Typically, this law applies to trade secrets, such as business methods and industrial processes. As with passing off, the principles are similar to those that have been developed in English and Australian law. Non-disclosure agreements (“NDAs”) are useful for providing contractual rights to prevent disclosure of confidential information and can be used to supplement common law rights.

Intellectual Property section last updated April 2007