ABSTRACT
The prohibition on filing a trade mark application in bad faith – now contained in s 17(2) – was a newly introduced provision in the Trade Marks Act 2002 (2002 Act). It was an (indirect) legal transplant from the European Trade Mark Directive. Following the enactment of the 2002 Act, New Zealand courts and adjudicators turned to English judicial interpretations for guidance on the meaning of bad faith. In this article, I demonstrate how other features of the statutory regime in the 2002 Act concerning the acquisition of trade marks have stunted the operation of s 17(2). I argue that bad faith has become something of a wilted transplant, which risks New Zealand’s law in the area remaining complex, rigid and static. I trace developments in Europe where I suggest a more teleological or purposive view of the meaning of bad faith is emerging. In light of these developments, I advocate for New Zealand courts and adjudicators to adopt such a teleological approach. I also suggest some statutory reform to allow such an approach to reinvigorate bad faith and make New Zealand law less complex and more flexible in addressing abuses of the trade mark system.
Batty, Rob, Bad Faith: A Section Whose Time has Come? (March 26, 2024). Forthcoming in the New Zealand Law Review.
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