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New Zealand Patent Law Update

18/11/2015

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The Patents (Trans-Tasman Patent Attorneys and Other Matters) Amendment Bill 2015 seeks to amend the current legislation to remove unity of invention as a ground of pre-grant opposition and re-examination.

It is anticipated that any changes made by the Bill will not have retrospective effect.

“Clause 4 amends section 92 of the Act to remove the right to oppose a grant of patent on the ground that the claim or claims relate to more than 1 invention, and to bring the law back to the position under the Patents Act 1953.”

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Certification Trade Marks

8/11/2015

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Certification Trade Marks allow the registered owner to certify that goods and services of other parties meet certain standards.  A certification trade mark might indicate that a product:

        (i)     is of a particular quality
        (ii)    has been manufactured in a particular location or by using a particular process
        (iii)   is made from particular materials or ingredients
        (iv)   is suited to a particular task.

The use of a certification trade mark by an authorised user may provide a market advantage.

To obtain a certification trade mark the trade applicant must first submit a set rules  to the ACCC.  The set of rules must specify requirements governing the use of the certification trade mark.  The ACCC will provide an initial assessment and a final assessment of the rules.

A number of registered certification trade marks are detailed below.

TM: 185836
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The Woolmark Company Pty Ltd

All goods in class 24
TM: 451318
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Australian Made Campaign Ltd

Numerous Classes
Some further information is available on: https://www.accc.gov.au/business/applying-for-exemptions/certification-trade-marks
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Shape Trade Marks

4/11/2015

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A shape trade mark allows owners to protect their brand recognition in connection with the shape of a product. For a shape to be registered as a trade mark it must be capable of distinguishing the goods or services of the owner from the goods and services of other traders.

A shape trade mark may comprise the shape of a product or an aspect of packaging.  The shape must be capable of distinguishing the owner's goods or services from those of other traders. 

A shape trade mark may acquire distinctiveness through use a prior to filing of an application.  In order to support a shape trade mark application that has acquired distinctiveness, evidence of the acquired distinctiveness is able to be filed at the Trade Mark Office.

The triangular shape of “Toblerone” chocolate was accepted as a shape trade mark. It was seen that the shape qualified as an “added feature” rather than a functional feature.

Kraft Foods' Toblerone
Registration Number: 706788
​Class 30

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Notably the Kit Kat confectionery shape was refused registration.  This was because the evidence did not demonstrate that the shape itself had acquired distinctiveness.

Nestlé's Kit Kat
Application Number: 822779
​
Class 30


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​Several parties opposed the Kit Kat application on the basis that the Kit Kat trade mark was solely a functional shape, merely being two bars joined together by a thin base.  It was contended that the mark could not operate as a trade mark.


The examiner concluded that the evidence garnered high recognition as a functional shape rather than a shape that has  acquired a capacity to distinguish. 


On the other hand,
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    Author

    Adam Law
    BSc(Hons) BE(Hons) FIPTA(Patent Attorney)

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