- Contents
- 1 Title
- 2 Commencement
- Part 1 Preliminary provisions
- Part 2 Registered geographical indications
- Nature of registered geographical indication
- Registration
- Restrictions on registration
- 10 Geographical indication identical to registered geographical indication
- 11 Geographical indication identical to customary name of grape variety
- 12 Geographical indication identical to common name for wine or spirit
- 13 Foreign geographical indication
- 14 No registration of geographical indication if identical to trade mark for identical goods or services
- 15 No registration of geographical indication if identical to trade mark for similar goods or services
- 16 No registration of geographical indication if similar to trade mark for identical goods or services
- 17 No registration of geographical indication if similar to trade mark for similar goods or services
- 18 When restrictions on registration as geographical indication do not apply in relation to trade mark
- Registration of homonymous geographical indication
- Restrictions on use of registered geographical indications
- 21 Restriction on use of New Zealand registered geographical indication for wine
- 22 Restriction on use of foreign registered geographical indication for wine
- 23 Restriction on use of New Zealand registered geographical indication for spirit
- 24 Restriction on use of foreign registered geographical indication for spirit
- 25 Additional rules relating to restrictions on use
- 26 Use of certain information not use of registered geographical indication
- When restrictions on use of registered geographical indication do not apply
- 27 Wine or spirit never in New Zealand or in transit only
- 28 Bottling predatingregistration of registered geographical indication
- 29 Continuous use
- 30 Trade mark predatingregistration of registeredgeographical indication
- 31 Use of registered geographical indication in unregistered trade mark after 5 years after adverse use generally known
- 32 Unregistered geographical indication homonymous with registered geographical indication
- Effect of breach of restriction
- Registrar
- 34 Registrar
- 35 Registrar’s seal
- Process of registration
- 36 Interested person may apply for registration of geographical indication
- 37 Registrar must deal with application according to prescribed procedure
- 38 Priority
- 39 Registrar may obtain advice and consult
- 40 Hearing before exercise of Registrar’s discretion
- 41 Conditions of use
- Register of registered geographical indications
- Appeals
- Geographical indications committees
- Miscellaneous
- 57 Regulations
- 58 Act does not affect unregistered geographical indication
- 59 Act does not affect Wine Act 2003
- 60 Act does not affect New Zealand (Australia New Zealand Food Standards Code) Food Standards 2002
- 61 Act does not limit Fair Trading Act 1986
- 62 Geographical Indications Act 1994 repealed
- 63 Trade Marks Act 2002 amended
- 64 Other consequential amendments
- Notes
Reprint as at 14 April 2008
Geographical Indications (Wine and Spirits) Registration Act 2006
Public Act 2006 No 60 Date of assent 21 November 2006 Commencement see section 2
Note
Changes authorised by section 17C of the Acts and Regulations Publication Act 1989
have been made in this reprint. Ageneraloutlineofthesechangesissetoutinthenotesattheendofthisreprint,togetherwith other explanatory material about this reprint.
The Geographical Indications (Wine and Spirits) Registration Act 2006 isadministered by the Ministry of Economic Development.
When restrictions on use of registered geographical indication do not apply
27 Wine or spirit never in New Zealand or in transit only 15 28 Bottling predating registration of registered geographical 15 indication 29 Continuous use 16 30 Trade mark predating registration of registered 16 geographical indication 31 Use of registered geographical indication in unregistered 17 trademarkafter5yearsafteradverseusegenerallyknown 32 Unregistered geographical indication homonymous with 17 registered geographical indication
Effect of breach of restriction
33 Breach of restriction on use of registered geographical 17 indication is breach of Fair Trading Act 1986
34 Registrar 17 35 Registrar’s seal 18
36 Interested person may apply for registration of 18 geographical indication 37 Registrar must deal with application according to 18 prescribed procedure 38 Priority 18 39 Registrar may obtain advice and consult 19 40 Hearing before exercise of Registrar’s discretion 19 41 Conditions of use 19
Register of registered geographical indications
42 Register 19 43 Public access to register 20 44 Registrar may correct obvious errors or omissions 20 45 Removal from register 21 46 Alteration of register 21 47 Procedure for removal or alteration 21
48 Appeals in relation to Registrar’s decisions 22 49 Notice of appeal 22 50 Hearing of appeal 22 51 Determination of appeal 22 52 Provisions pending determination of appeal 23
Geographical indications committees
53 When Registrar may establish geographical indications 23 committee 54 Membership of committee 24 55 Discharge of committee or removal of member 24 56 Proceedings of committee 24
57 Regulations 25 58 Actdoesnotaffectunregisteredgeographicalindication 26 59 Act does not affect Wine Act 2003 26 60 Act does not affect New Zealand (Australia New Zealand 26 Food Standards Code) Food Standards 2002 61 Act does not limit Fair Trading Act 1986 26 62 Geographical Indications Act 1994 repealed 26 63 Trade Marks Act 2002 amended 26 20 Trade mark that contains registered geographical 27 indication must not be registered 98A No infringement through use of registered 27 geographical indication 64 Other consequential amendments 28
1 Title This Act is the Geographical Indications (Wine and Spirits) Registration Act 2006.
2 Commencement
(1) This Act comes into force on a date to be appointed by the GovernorGeneral by Order in Council.
(2) One or more Orders in Council may be made appointing different dates for the commencement of different provisions. 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).
Part 1 Preliminary provisions
Purpose
The purposes of this Act are to—
- (a)
- contributetothedevelopmentandcontinualgrowthof, andinnovationin,thewineandspiritsindustriesinNew Zealandbyprovidingasuitablelegalframeworkforthe registration of geographical indications; and
- (b)
- provideasoundtradingandmarketingenvironmentthat facilitates, rather than creates barriers to, the trade in wine and spirits; and
- (c)
- facilitate the purposes set out in paragraphs (a) and (b) in a manner consistent with New Zealand’s rights and obligations under the TRIPS Agreement.
Interpretation
In this Act, unless the context requires otherwise,—
bottled means placed or contained in a bottle or other con tainer used for wine or spirits committee means a geographical indications committee es
country includes a member of the World Trade Organization established by Article 1 of the WTO Agreement court means the High Court foreign geographical indication has the meaning given to it
foreign registered geographical indication has the meaning given to it in section 7(3) geographical indication has the meaning given to it in sec
tion 6(1) 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 in dications
ministrymeansthedepartmentofStatethat,withtheauthority ofthePrimeMinister,isforthetimebeingresponsibleforthe administration of this Act
New Zealand Geographic Board means the New Zealand Geographic Board established under section 3 of the New Zealand Geographic Board Act 1946
NewZealandgeographicalindicationhasthemeaninggiven
to it in section 6(2) New Zealand registered geographical indication has the meaning given to it in section 7(2)
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 in corporated or unincorporated persons
prescribed means prescribed by regulations made under sec
tion 57 register means the register of registered geographical indica tions established under section 42
registeredgeographicalindication hasthemeaninggivento
it in section 7(1) RegistrarmeanstheRegistrarofRegisteredGeographicalIn dications appointed under section 34
spirit 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,andothercharacteristicsgenerallyattributableto that particular spirit
SurveyorGeneral means the SurveyorGeneral 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
TRIPS Agreement means the Agreement on TradeRelated Aspects of Intellectual Property set out in Annex 1C to the WTO Agreement
wine has the same meaning as grape wine in section 4(1) of the Wine Act 2003 working day means a day of the week other than—
- (a)
- Saturday, Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, the Sovereign’s Birthday, and Labour Day; and
- (b)
- thedayobservedintheappropriateareaastheanniversary of the province of which the area forms part; and
- (c)
- adayintheperiodbeginningwith25Decemberinany year and,—
- (i)
- exceptin section49 ,endingwith2Januaryinthe following year; or
- (ii)
- in section 49, ending with 15 January in the fol
lowing year WTO Agreement means the World Trade Organization AgreementadoptedatMarrakeshon15April1994,asrevised or amended from time to time.
5 Act binds the Crown
This Act binds the Crown.
Part 2 Registered geographical indications
Nature of registered geographical indication
6 What is geographical indication?
- (1)
- A geographical indication is an indication that identifies a wine or spirit 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 or spirit is essentially attributable to its geographical origin.
- (2)
- A NewZealandgeographicalindication meansageographical indication that identifies a wine or spirit as originating in New Zealand.
- (3)
- A foreign geographical indication means a geographical indicationthatidentifiesawineorspiritasoriginatinginacountry other than New Zealand.
7 What is registered geographical indication?
- (1)
- A registered geographicalindication isageographicalindi cation that has been registered under section 8.
- (2)
- ANewZealandregisteredgeographicalindicationisaNew Zealandgeographicalindicationthathasbeenregisteredunder section 8.
- (3)
- A foreign registered geographical indication is a foreign geographical indication that has been registered under sec tion 8.
Registration
8 Registration
- (1)
- The Registrar registers a geographical indication by entering it in the register.
- (2)
- TheRegistrarmayregisterageographicalindicationexceptin the cases set out in sections 10 to 15.
9 Date of registration
- (1)
- A registered geographical indication is deemed to be registered on and from the date of the application for registration.
- (2)
- TheRegistrarmustnotregisterageographicalindicationuntil 6 months after the date of the application for registration.
- (3)
- Thedateoftheapplicationforregistrationisthedatewhenthe Registrar receives the application.
Restrictions on registration
10 Geographical indication identical to registered geographical indication
The Registrar must not register—
- (a)
- ageographicalindicationforawinethatisidenticaltoa registeredgeographicalindicationforawinein respect of the same or a similar geographical origin:
- (b)
- ageographicalindicationforaspiritthatisidenticaltoa registeredgeographicalindicationforaspiritinrespect of the same or a similar geographical origin.
11 Geographical indication identical to customary name of grape variety
The Registrar must not register a geographical indication if it is identical to the customary name of a grape variety existing in New Zealand on 1 January 1995.
12 Geographical indication identical to common name for wine or spirit
The Registrar must not register—
- (a)
- a 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 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.
13 Foreign geographical indication
TheRegistrarmustnotregisteraforeigngeographicalindication thatis not,orhasceasedtobe, protected in itscountry of origin or that has fallen into disuse in that country.
14 No registration of geographical indication if identical to trade mark for identical goods or services
- (1)
- The Registrar must not register a 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)
- TheRegistrarmustnotregisterageographicalindicationif—
- (a)
- it is identical to a trade mark; and
- (b)
- the owner of the trade mark has in good faith applied fortheregistrationinNewZealandofthetrademarkin respect of identical goods or services; and
- (c)
- thetrademark’sdeemeddateofregistration(asdefined in section 5 of the Trade Marks Act 2002), if the trade markweretoberegistered,isearlierthanthedateofthe application for registration of the geographical indication.
- (3)
- The Registrar must not register a geographical indication if it is identical to a trade mark and rights to the trade mark have
9
been acquired through use in New Zealand in good faith in respect of identical goods or services.
15 No registration of geographical indication if identical to trade mark for similar goods or services
- (1)
- TheRegistrarmustnotregisterageographicalindicationif—
- (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)
- TheRegistrarmustnotregisterageographicalindicationif—
- (a)
- it is identical to a trade mark; and
- (b)
- the owner of the trade mark has in good faith applied fortheregistrationinNewZealandofthetrademarkin respect of similar goods or services; and
- (c)
- thetrademark’sdeemeddateofregistration(asdefined in section 5 of the Trade Marks Act 2002), if the trade markweretoberegistered,isearlierthanthedateofthe application for registration of the geographical indication; and
- (d)
- its use is likely to deceive or confuse.
- (3)
- TheRegistrarmustnotregisterageographicalindicationif—
- (a)
- it is identical to a trade mark; and
- (b)
- rightstothetrademarkhavebeenacquiredthroughuse inNewZealandingoodfaithinrespectofsimilargoods or services; and
- (c)
- its use is likely to deceive or confuse.
16 No registration of geographical indication if similar to trade mark for identical goods or services
- (1)
- TheRegistrarmustnotregisterageographicalindicationif—
- (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)
- TheRegistrarmustnotregisterageographicalindicationif—
- (a)
- it is similar to a trade mark; and
- (b)
- the owner of the trade mark has in good faith applied fortheregistrationinNewZealandofthetrademarkin respect of identical goods or services; and
- (c)
- thetrademark’sdeemeddateofregistration(asdefined in section 5 of the Trade Marks Act 2002), if the trade markweretoberegistered,isearlierthanthedateofthe application for registration of the geographical indication; and
- (d)
- its use is likely to deceive or confuse.
- (3)
- TheRegistrarmustnotregisterageographicalindicationif—
- (a)
- it is similar to a trade mark; and
- (b)
- rightstothetrademarkhavebeenacquiredthroughuse in New Zealand in good faith in respect of identical goods or services; and
- (c)
- its use is likely to deceive or confuse.
17 No registration of geographical indication if similar to trade mark for similar goods or services
- (1)
- TheRegistrarmustnotregisterageographicalindicationif—
- (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)
- TheRegistrarmustnotregisterageographicalindicationif—
- (a)
- it is similar to a trade mark; and
- (b)
- the owner of the trade mark has in good faith applied fortheregistrationinNewZealandofthetrademarkin respect of similar goods or services; and
- (c)
- thetrademark’sdeemeddateofregistration(asdefined in section 5 of the Trade Marks Act 2002), if the trade markweretoberegistered,isearlierthanthedateofthe application for registration of the geographical indication; and
- (d)
- its use is likely to deceive or confuse.
- (3)
- TheRegistrarmustnotregisterageographicalindicationif—
- (a)
- it is similar to a trade mark; and
- (b)
- rightstothetrademarkhavebeenacquiredthroughuse inNewZealandingoodfaithinrespectofsimilargoods or services; and
- (c)
- its use is likely to deceive or confuse.
18 When restrictions on registration as geographical indication do not apply in relation to trade mark
- (1)
- The restrictions in sections 14 to 17 do not apply, and the Registrarmayregisterageographicalindicationthatisidentical 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)
- theRegistrarconsidersthatthegeographicalindication may coexist with the trade mark.
- (2)
- In making a decision under subsection (1)(b), the Registrar must have regard to the following factors:
- (a)
- thegeographicalindication’shistoryofuseingoodfaith 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.
Registration of homonymous geographicalindication
19 Registrar may register homonymous geographical indication
(1) TheRegistrarmayregisterahomonymousgeographicalindi cation under section 8.
(2) A homonymous geographical indication is—
- (a)
- a geographical indication for a wine that has the same spelling as, or sounds the same as,—
- (i)
- a registered geographical indication for a wine having a different geographical origin; or
- (ii)
- ageographicalindicationforawinehavingadifferent geographical origin for which an applica tion for registration under section 36 has been made; or
- (b)
- a geographical indication for a spirit that has the same spelling as, or sounds the same as,—
- (i)
- a registered geographical indication for a spirit having a different geographical origin; or
- (ii)
- ageographicalindicationforaspirithavingadifferent geographical origin for which an applica tion for registration under section 36 has been made.
20 Registrar may impose conditions when registering homonymous geographical indication
- (1)
- For the purposes of section 19, the Registrar may register the homonymous geographical indication with conditions, or al ter theregister under sections 46 and 47to includeconditions fortheuseoftheearlierregisteredgeographicalindication,or both.
- (2)
- In deciding what conditions (if any) to impose under subsection (1), the Registrar must take into account—
- (a)
- theneedfortheequitabletreatmentoftheproducersof the wines or spirits to which the geographical indications relate; and
- (b)
- the need to ensure that consumers are not misled.
Restrictions on use of registered geographicalindications
21 RestrictiononuseofNewZealandregisteredgeographical 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 harvestedinthegeographicaloriginororiginstowhichthe New Zealand 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.
22 Restriction on use of foreign registered geographical indication for wine
Apersonmayuseaforeignregisteredgeographicalindication or indications in trade in New Zealand in relation to a wine only if—
- (a)
- that wine originated in the 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 the scope of their protectionintheircountryoforigin,includinganyconditionsastotheuseoftheforeignregisteredgeographical indication or indications.
23 RestrictiononuseofNewZealandregisteredgeographical 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)
- thatspiritoriginatedinthegeographicalorigintowhich theregisteredgeographicalindicationorindicationsrelate; and
- (b)
- the New Zealand registered geographical indication or indications are used in accordance with their registration in New Zealand.
24 Restriction on use of foreign registered geographical indication for spirit
Apersonmayuseaforeignregisteredgeographicalindication or indications in trade in New Zealand in relation to a spirit only if—
- (a)
- that spirit originated in the 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 the scope of their protectionintheircountryoforigin,includinganyconditionsastotheuseoftheforeignregisteredgeographical indication or indications.
25 Additional rules relating to restrictions on use The restrictions in sections 21 to 24 on the use of a registered geographical indication apply whether or not—
- (a)
- the true origin of the wine or spirit is indicated; or
- (b)
- the registered geographical indication is used in translation; or
- (c)
- the use of the registered geographical indication is accompaniedbyanyofthewords “kind”, “type”, “style”, “imitation”, or any similar word or expression.
26 Use of certain information not use of registered geographical indication For the purposes of sections 21 to 25, the use by a person ( A) ofanyorallofthefollowinginformation,inthecourseoftrade and notin suchamanner as tomislead the public, doesnot of itselfconstitutetheuseofaregisteredgeographicalindication 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.
When restrictions on use of registeredgeographical indication do not apply
27 Wine or spirit never in New Zealand or in transit only The restrictions on the use of a registered geographical indicationin sections21to24 donotapplyinrespectofawineor spirit that is—
- (a)
- never in New Zealand; or
- (b)
- inNewZealandonlyforthepurposeoftransitfromone country to another, neither of which is New Zealand.
28 Bottlingpredatingregistrationofregisteredgeographical indication The restrictions on the use of a registered geographical indi cation in sections 21 to 24 do not apply in respect of a wine orspiritthatwasbottledorwasbeingbottledbeforetheregisteredgeographicalindicationrelatingtothewineorspiritwas registered under this Act.
29 Continuous use
- (1)
- The restrictions on the use of a registered geographical indi cation in sections 21 to 24 do not apply in respect of the con tinued and similar use by any New Zealand person or entity
- (N)
- of a term that is a registered geographical indication if N has used the term in a continuous manner in trade in relation to a wine or spirit in New Zealand—
- (a)
- in good faith since before 15 April 1994; or
- (b)
- for at least 10 years before 15 April 1994.
- (2)
- In subsection (1), New Zealand person or entity includes—
- (a)
- the Government of New Zealand:
- (b)
- a New Zealand citizen:
- (c)
- inthecaseofanaturalperson,apersonwhoisordinarily 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).
30 Trade mark predating registration of registered geographical indication
- (1)
- Therestrictionsontheuseofaregisteredgeographicalindicationin sections21to24 donotapplyinrespectoftheuseofa trade mark if, before the effective date,—
- (a)
- thetrademarkhasbeenregisteredinNewZealand;or
- (b)
- registrationofthetrademarkinNewZealandhasbeen 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 andthe dateonwhich protectionofthegeographicalindication in its country of origin began.
31 Use of registered geographical indication in unregistered trade mark after 5 years after adverse use generally known
- (1)
- The restrictions on the use of a registered geographical indicationin sections21to24 ceasetoapplytotheusenotinbad faithofaregisteredgeographicalindicationinanunregistered trademarkafter5yearsafteritsadverseusebecamegenerally known in New Zealand.
- (2)
- In subsection (1), adverse use means use of a registered geographical indication in an unregistered trade mark in contra vention of the restrictions contained in sections 21 to 24.
32 Unregistered geographical indication homonymous with registered geographical indication
- (1)
- Thissectionapplieswhenaregisteredgeographicalindication andanunregisteredgeographicalindicationarehomonymous.
- (2)
- Therestrictionsontheuseofaregisteredgeographicalindicationin sections21to24 donotapplytotheuseofanunregisteredgeographicalindicationforawineorspiritthatoriginates inthegeographicalorigintowhichtheunregisteredgeographical indication relates.
Effect of breach of restriction
33 Breach of restriction on use of registered geographical indication is breach of Fair Trading Act 1986
A person who contravenes any of sections 21 to 24 contra venes section 9 of the Fair Trading Act 1986 and the provi sions of that Act apply accordingly.
Registrar
34 Registrar
- (1)
- TheremustbeaRegistrarofRegisteredGeographicalIndica tions appointed under the State Sector Act 1988.
- (2)
- The Registrar must be an officer or employee of the ministry, andhisorherappointmentmaybeheldeitherseparatelyorin conjunction with any other office in the ministry.
35 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 inscribedinthemarginthewords“RegistrarofRegisteredGeographical 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, orbyapersonemployedtoassisttheRegistrarintheexercise 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 ashavingbeensignedorissuedbyorunderthedirection of the Registrar.
Process of registration
36 Interested person may apply for registration of geographical indication
An interested person may apply in the prescribed form and onpayment of theprescribed fee for the registration of a geographical indication.
37 Registrar must deal with application according to prescribed procedure
- (1)
- The Registrar must deal with the application according to the procedure prescribed by regulations made under section 57.
- (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.
38 Priority
- (1)
- The first application for the registration of a geographical indicationreceivedbytheRegistrarhaspriorityoveranysubsequent application for registration of an identical geographical indication—
- (a)
- inrespectofthesamegood(thatis,wineorspirit);and
- (b)
- having the same or a similar geographical origin.
- (2)
- TheRegistrarmustrejectanysubsequentapplicationreceived before the Registrar has accepted or rejected the first application.
39 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.
40 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)
- ageographicalindicationthatisthesubjectofanappli cation for registration under section 8.
- (2)
- Regulationsmadeunder section57 mayprescribetheprocedure for the opportunity to be heard.
41 Conditions of use TheRegistrarmayregisterageographicalindicationwithconditions as the Registrar thinks fit, including conditions on the use of the geographical indication.
Register of registered geographical indications
42 Register
- (1)
- The Registrar must establish and maintain a register of registered geographical indications.
- (2)
- The register must contain 2 parts, as follows:
- (a)
- Part1,forallregisteredgeographicalindicationsexcept those to which paragraph (b) refers:
- (b)
- Part 2, for geographical indications that have been reg istered in accordance with regulations made under sec tion 57(j).
- (3)
- The register must specify, in respect of each registered geographical indication,—
- (a)
- whether it relates to a wine or a spirit or to both; and
- (b)
- itsboundaries,unlessitisaforeignregisteredgeographicalindication(includingaforeignregisteredgeographical indication in Part 2 of the register); and
- (c)
- any conditions that relate to it; and
- (d)
- the date of registration.
- (4)
- The register may be kept in any manner that the Registrar thinks fit, including, either wholly or partly, by means of a device or facility—
- (a)
- that records or stores information electronically or by other means; and
- (b)
- thatpermitstheinformationsorecordedorstoredtobe readily inspected or reproduced in usable form.
- (5)
- Theregisterisprimafacieevidenceofanymattersrequiredor authorised by or under this Act to be entered in it.
43 Public access to register
- (1)
- The Registrar must allow access to the register during each working day, at the times determined by Registrar for inspection, by any person who pays the prescribed fee (if any).
- (2)
- The Registrar must provide a copy, or a certified copy, of any particularsontheregistertoanypersonwhoappliesforitand pays the prescribed fee (if any).
- (3)
- 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.
44 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.
45 Removal from register
- (1)
- The Registrar may remove a registered geographical indication from the register if satisfied that any of the following grounds exist:
- (a)
- inthecaseofaforeigngeographicalindication,itisnot, 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 geograph ical 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 15:
- (e)
- ithasbecomeatermcustomaryincommonlanguageas the common name for a wine or spirit inNew Zealand.
- (2)
- The Registrar may remove a registered geographical indicationundersubsection(1)onhisorherowninitiative,oronthe application of any interested person.
- (3)
- TheRegistrarmayrefuseanapplicationforremovalthatinthe Registrar’s opinion is vexatious or frivolous.
46 Alteration of register
- (1)
- If satisfied that the alteration is necessary, the Registrar may, on his or her own initiative or on the application of an interestedperson, alter aregistered geographical indication, or the conditions or boundaries relating to it.
- (2)
- The Registrar may refuse an application for alteration that in the Registrar’s opinion is vexatious or frivolous.
47 Procedure for removal or alteration
- (1)
- Beforeremovingaregisteredgeographicalindicationfromthe register or altering the register, the Registrar must follow the procedure prescribed by regulations made under section 57.
- (2)
- Those regulations may include regulations for—
- (a)
- advertising the removal or alteration:
- (b)
- opposition, and determination of opposition, to the removal or alteration:
- (c)
- any other steps to be taken in effecting the removal or alteration.
Appeals
| 48 | Appeals in relation to Registrar’s decisions |
| ApersonwhoisaggrievedbyadecisionoftheRegistrarunder | |
| this Act may appeal to the court. | |
| 49 | Notice of appeal |
| Notice of anappealundersection48must 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. | |
| 50 | Hearing of appeal |
| (1) | Onanappeal,thecourtmustheartheRegistrarandtheparties. |
| (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 applica |
| tion for registration of a geographical indication, or the regis | |
| tration of a geographical indication,— | |
| (a) nofurthergroundsarepermittedbythepersonopposing | |
| theapplicationorregistration,otherthanthosestatedby | |
| the person opposing, except with the permission of the | |
| court; and | |
| (b) if further grounds of objection are permitted, the appli | |
| cantforregistrationmay,ongivingnoticeasprescribed | |
| in regulations made under section 57, withdraw the ap | |
| plication without paying the costs of the person oppos | |
| ing. | |
| 51 | 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 exer | |
| cised by the Registrar in relation to the matter to which | |
| the appeal relates. |
52 Provisions pending determination of appeal
ThedecisiontowhichanappealunderthisActrelatesremains infullforcependingthedeterminationoftheappealunlessthe court orders otherwise.
Geographical indications committees
53 When Registrar may establish geographical indications committee
- (1)
- The Registrar may, if the Registrar thinks fit, establish a geographical indications committee in relation to an application for 1 or more of the following:
- (a)
- registration of a geographical indication:
- (b)
- alteration of a registered geographical indication:
- (c)
- removal of a registered geographical indication from the register.
- (2)
- In deciding whether or not to establish a geographical indicationscommitteeundersubsection(1)inrelationtoanapplicationforregistrationofageographicalindication,theRegistrar 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)
- whethertheapplicationissupportedbytherelevantnational 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)
- whetherthereareanyexistinghomonymousgeographical indications:
- (e)
- whether, if the application is successful, the geographicalindicationmightberegisteredsubjecttoconditions:
- (f)
- thehistoryandthecurrentuseofthegeographicalindication 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 boundaries and the use of a place name as a geographical indication.
54 Membership of committee
- (1)
- The Registrar may at any time appoint a member of the committee.
- (2)
- Each committee must include the following members:
- (a)
- theSurveyorGeneral(ortheSurveyorGeneral’srepresentative)actinginhisorhercapacityasSurveyorGeneral:
- (b)
- a member of the New Zealand Geographic Board, who isnottheSurveyorGeneral,actinginhisorhercapacity as a member of that board:
- (c)
- 1ormorepersonswho,intheRegistrar’sopinion,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 organisationsrepresentingthewineorspiritsindustry,asthecasemay 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.
55 Discharge of committee or removal of member
- (1)
- The Registrar may at any time discharge the committee.
- (2)
- The Registrar may at any time remove a member of the committee,excepttheSurveyorGeneral,andappointanotherperson in his or her place.
56 Proceedings of committee
- (1)
- Meetingsofacommitteemustbeheldatthetimesandplaces asthecommitteeorthechairpersonfromtimetotimedecides.
- (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)
- Thechairpersonofacommitteehasadeliberativevoteand,in the case of an equality of votes, a casting vote.
- (5)
- Exceptasprovidedinthissectionandinanyregulationsmade underthisAct,andsubjecttoanydirectiongivenbytheRegistrar, the committee may regulate its own procedure.
Miscellaneous
57 Regulations The GovernorGeneral 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)
- prescribinganytransitionalarrangementsformakingor dealing with an application for registration of a geographical indication:
- (d)
- prescribing the procedure relating to the removal of a registered geographical indication from the register:
- (e)
- prescribing the procedure relating to the alteration of a geographical indication on the register:
- (f)
- prescribing the procedure for any hearing under this Act:
- (g)
- prescribingtimeandextensionsoftimeinrespectofany matters under this Act:
- (h)
- specifying conditions relating to 1 or more registered geographical indications:
- (i)
- 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:
- (j)
- giving effect, for the purposes of this Act, to the terms of any international agreement:
- (k)
- providing for any other matters contemplated by this Act or necessary for its administration or necessary for giving it full effect.
58 Act does not affect unregistered geographical indication NothinginthisActaffectsageographicalindicationthatisnot a registered geographical indication.
59 Act does not affect Wine Act 2003
NothinginthisActaffectstheoperationofthe WineAct2003 .
60 Act does not affect New Zealand (Australia New Zealand Food Standards Code) Food Standards 2002 Nothing in this Act affects the operation of the New Zealand (Australia New Zealand Food Standards Code) Food Standards 2002.
61 Act does not limit Fair Trading Act 1986 NothinginthisActlimitstheoperationofthe FairTradingAct 1986 .
62 Geographical Indications Act 1994 repealed
63 Trade Marks Act 2002 amended
- (1)
- Section 5(1) of the Trade Marks Act 2002 is amended by re pealingthedefinitionsofgeographicalindication, protected geographical indication, and specified goods.
- (2)
- Section 5(1) of the Trade Marks Act 2002 is amended by in sertingthefollowingdefinitionafterthedefinitionofregister: “registered geographical indication has the same meaning as in section 7(1) of the Geographical Indications (Wine and Spirits) Registration Act 2006”.
- (3)
- Section11 oftheTradeMarksAct2002isamendedbyinserting the following paragraph after paragraph (a): “(ab) aresubjecttoanyrightsarisingoutofaregisteredgeo graphical indication; and”.
- (4)
- The Trade Marks Act 2002 is amended by repealing sec tion 20 and substituting the following section:
“20 Trade mark that contains registered geographical indication must not be registered
“(1) The Commissioner must not register a trade mark that— “(a) contains— “(i) a registered geographical indication for a wine; or “(ii) a geographical indication in respect of which registration has been applied for in good faith under the Geographical Indications (Wine and Spirits) Registration Act 2006; and “(b) relates to a wine that does not originate from the geographicalorigintowhichtheregisteredgeographicalindication relates.
“(2) The Commissioner must not register a trade mark that— “(a) contains a registered geographical indication for a spirit; and “(b) relates to a spirit that does not originate from the geographicalorigintowhichtheregisteredgeographicalindication relates.
“(3) In this section,— “spirit hasthesamemeaningasinsection4oftheGeographical Indications (Wine and Spirits) Registration Act 2006 “wine has the same meaning as in section 4 of the Geograph
ical Indications (Wine and Spirits) Registration Act 2006.”
- (5)
- Section88 oftheTradeMarksAct2002isamendedbyrepealing paragraph (c) and substituting the following paragraph: “(c) rights under the Geographical Indications (Wine and Spirits) Registration Act 2006.”
- (6)
- The Trade Marks Act 2002 is amended by inserting the fol lowing section after section 98:
“98A No infringement through use of registered geographical indication A registered trade mark is not infringed by the use of a registered geographical indication registered under the Geographical Indications (Wine and Spirits) Registration Act 2006.”
64 Other consequential amendments
- (1)
- Section 8 of the New Zealand Geographic Board Act 1946 is amended by inserting the following subsection after subsection (1): “(1A) TheBoardalsohasthefunctionsgiventoitbytheGeographical Indications (Wine and Spirits) Registration Act 2006.”
- (2)
- Part2 ofSchedule1oftheOmbudsmenAct1975isamended by inserting the following item in its appropriate alphabetical order: “Geographical indications committees established under the Geographical Indications (Wine and Spirits) Registration Act 2006”.
- (3)
- Schedule1 oftheTransTasmanMutualRecognitionAct1997 is amended by omitting the item “Geographical Indications Act1994”andsubstitutingtheitem“GeographicalIndications (Wine and Spirits) Registration Act 2006”.
Contents
1 General
2 Status of reprints
3 How reprints are prepared
4 Changesmadeundersection17CoftheActsandRegulations Publication Act 1989
5 List of amendments incorporated in this reprint (most recent first)
Notes
1 General
This is a reprint of the Geographical Indications (Wine and Spirits) Registration Act 2006. The reprint incorporates all the amendments to the Geographical Indications (Wine and Spirits)RegistrationAct2006asat14April2008,asspecified in the list of amendments at the end of these notes.
Relevant provisions of any amending enactments that have yet to come into force or that contain relevant transitional or savings provisions are also included, after the principal enactment, in chronological order.
2 Status of reprints
Under section 16D of the Acts and Regulations Publication Act 1989, reprints are presumed to correctly state, as at the dateofthereprint,thelawenactedbytheprincipalenactment and by the amendments to that enactment. This presumption applies even though editorial changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in the reprint.
This presumption may be rebutted by producing the official volumes of statutes or statutory regulations in which the principal enactment and its amendments are contained.
3 How reprints are prepared
A number of editorial conventions are followed in the preparation of reprints. For example, the enacting words are not included in Acts, and
29
provisions that are repealed or revoked are omitted. For a detailed list of the editorial conventions, see http://www.pco.parliament.govt.nz/legislation/reprints.shtml or Part 8 of the Tables of Acts and Ordinances and Statutory Regulations, and Deemed Regulations in Force.
Changes made under section 17C of the Acts and Regulations Publication Act 1989
Section17C oftheActsandRegulationsPublicationAct1989 authorises the making of editorial changes in a reprint as set out in sections 17D and 17E of that Act so that, to the extent permitted, the format and style of the reprinted enactment is consistent with current legislative drafting practice. Changes thatwould alter the effect of the legislation are not permitted.
Anewformatoflegislationwasintroducedon1January2000. Changestolegislativedraftingstylehavealsobeenmadesince 1997, and are ongoing. To the extent permitted by section 17C of the Acts and Regulations Publication Act 1989, all legislationreprintedafter1January2000isinthenewformat forlegislationandreflectscurrentdraftingpracticeatthetime of the reprint.
In outline, the editorial changes made in reprints under the authority of section 17C of the Acts and Regulations Publication Act 1989 are set out below, and they have been applied, where relevant, in the preparation of this reprint:
• omission of unnecessary referential words (such as “of this section” and “of this Act”)
- typefaceandtypesize(TimesRoman,generallyin11.5 point)
- layout of provisions, including:
- indentation
- positionofsectionheadings(eg,thenumberand heading now appear above the section)
- formatofdefinitions(eg,thedefinedtermnowappears in bold type, without quotation marks)
- format of dates (eg, a date formerly expressed as “the 1stdayofJanuary1999”isnowexpressedas“1January 1999”)
- positionofthedateofassent(itnowappearsonthefront page of each Act)
- punctuation (eg, colons are not used after definitions)
- Partsnumberedwithromannumeralsarereplacedwith arabic numerals, and all crossreferences are changed accordingly
- case and appearance of letters and words, including:
- format of headings (eg, headings where each word formerly appeared with an initial capital letter followed by small capital letters are amended so that the heading appears in bold, with only the first word (and any proper nouns) appearing with an initial capital letter)
- small capital letters in section and subsection references are now capital letters
- schedules are renumbered (eg, Schedule 1 replaces First Schedule), and all crossreferences are changed accordingly
- running heads (the information that appears at the top of each page)
- format of twocolumn schedules of consequential amendments, and schedules of repeals (eg, they are rearranged into alphabetical order, rather than chronologican( �/span>.
List of amendments incorporated in this reprint (most recent first)
Geographical IndicationsAct 1994 RepealOrder 2008(SR2008/64): clause 2
Wellington, New Zealand: Published under the authority of the New Zealand Government—2008