Bay of Plenty Business News June/July 2019
From mid-2016 Bay of Plenty businesses have a new voice, Bay of Plenty Business News. This new publication reflects the region’s growth and importance as part of the wider central North Island economy.
From mid-2016 Bay of Plenty businesses have a new voice, Bay of Plenty Business News. This new publication reflects the region’s growth and importance as part of the wider central North Island economy.
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BAY OF PLENTY BUSINESS NEWS <strong>June</strong>/<strong>July</strong> <strong>2019</strong><br />
11<br />
To consent<br />
or not to<br />
consent?<br />
That is the question: Whether ‘tis nobler<br />
in the mind to suffer the slings and arrows<br />
<strong>of</strong> consumer confusion, or to take arms<br />
against a sea <strong>of</strong> potential troubles and by<br />
opposing end them.<br />
“What on earth is this guy<br />
talking about?” I hear you<br />
say. I’m talking about to<br />
consent - or not - to registration<br />
<strong>of</strong> an identical or similar<br />
trade mark to yours.<br />
Let me explain. The New<br />
Zealand Trade Marks Register<br />
has become very crowded,<br />
such are the numbers <strong>of</strong> registered<br />
trade marks now on it.<br />
It has consequently become<br />
quite common for a person<br />
seeking to register a new<br />
trade mark to find their application<br />
to do so “blocked” by<br />
one or more previous registrations.<br />
To overcome this hurdle,<br />
the applicant must either convince<br />
the trade marks examiner<br />
at the Intellectual Property<br />
Office that their mark is<br />
sufficiently distinctive from<br />
those preventing its registration,<br />
or it must obtain consent<br />
from the owners <strong>of</strong> the prior<br />
registrations.<br />
At first glance, a request<br />
for consent does not seem a<br />
particularly difficult question<br />
to answer. However, the consent<br />
request involves consideration<br />
<strong>of</strong> a number <strong>of</strong> issues,<br />
not least because the person<br />
asking could be a wolf in<br />
sheep’s clothing.<br />
The issues a trade mark<br />
owner needs to consider<br />
include:<br />
If I consent, what is the<br />
impact on the distinctiveness<br />
<strong>of</strong> my trade mark? Is confusion<br />
among my existing and<br />
potential customers likely to<br />
result?<br />
If I consent, what is the<br />
potential effect on where<br />
my business trades now and<br />
where it may trade in the<br />
future?<br />
If I consent, and a problem<br />
arises in the future because <strong>of</strong><br />
how the other person has used<br />
their trade mark, am I prevented<br />
from taking action?<br />
If I don’t consent, will<br />
the other person attack my<br />
registration? Will they try<br />
and remove it from the Trade<br />
Marks Register to secure their<br />
registration?<br />
If I don’t consent, will the<br />
other person use their trade<br />
mark anyway, and if so, what<br />
is the impact on the distinctiveness<br />
<strong>of</strong> my trade mark<br />
etc? Do I need to try and stop<br />
them from using their trade<br />
mark?<br />
If I don’t consent, and I<br />
have to issue legal proceedings,<br />
what will those proceedings<br />
cost?<br />
If you receive a request for<br />
consent, therefore, consider<br />
all the possible ramifications<br />
before replying. Work out<br />
with (we recommend) the<br />
INTELLECTUAL PROPERTY ISSUES<br />
> BY BEN CAIN<br />
Ben Cain is a Senior Associate at James & Wells and a Resolution<br />
Institute-accredited mediator. He can be contacted at 07 928 4470<br />
(Tauranga), 07 957 5660 (Hamilton), and benc@jaws.co.nz.<br />
assistance <strong>of</strong> a trade mark<br />
lawyer whether ‘tis indeed<br />
nobler in the mind to suffer<br />
the slings and arrows <strong>of</strong> consumer<br />
confusion, or to take<br />
arms against a sea <strong>of</strong> potential<br />
troubles and, by opposing,<br />
end them.<br />
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