2 History

Sections 177-180 of the Act are the result of recommendations made to the government through a consultative process.

The process began in 1990 when the then Ministry of Commerce (now Ministry of Business, Innovation and Employment) released a discussion paper titled “Review of Industrial Property Rights,” with the intention of undertaking a broad-ranging and integrated law review of New Zealand’s intellectual property rights legislation. It was subsequently decided that work should be progressed in three stages, encompassing trade marks, patents, designs and other issues.

In 1991 the Ministry of Commerce proposed a number of changes to the Trade Marks Act 1953. In view of concerns expressed by Māori that the 1953 Act did not adequately protect Māori cultural and intellectual property, work on the legislation was suspended in order to undertake consultations with Māori. Four national hui were held in 1994, resulting in the establishment of the Māori Trade Marks Focus Group (“the Focus Group”).

The Focus Group met during 1995 and 1996 and produced a background paper ("Māori and Trade Marks: A Discussion Paper") which reported on the outcome of the Focus Group's deliberations relating to the registration, as trade marks, of Māori words, symbols, sounds or smells. It was used as the basis of discussion for a series of eight further hui which were held throughout New Zealand.

The work of the Focus Group and subsequent consultations formed the basis of recommendations to Cabinet in April 1999, concerning measures to be included in the Trade Marks Act. Included was a recommendation that a consultative group to advise the Commissioner be established. In September 1999 Cabinet agreed that the Trade Marks Act should include a provision to establish what is now referred to as the Māori Trade Marks Advisory Committee (“the Committee”).

A key rationale for establishing the Committee was to minimise the risk that the Crown may inadvertently register as trade marks, Māori text and imagery, where registration or use of the trade mark was likely to cause offence to Māori.

In order to achieve this, it is necessary that the Commissioner have access to expert advisers to provide assurance that the decisions the Commissioner is required to make in respect of the registration of trade marks containing Māori text or imagery are made appropriately.

The advice of the Committee is not binding on the Commissioner. The Commissioner will consider the advice taking into account all relevant factors affecting registrability and may come to a determination on the eligibility of an application that is different to the advice received from the Committee.