By DITA DE BONI
As Auckland hosts the Catching the Knowledge Wave conference this week, laws that will protect the ideas that may form the base of that potentially prosperous new economy are being overhauled.
Intellectual property lawyers have long claimed that New Zealand lags the rest of the developed world over trademarks and patents.
They are heartened that businesses will soon be able to register their marks and logos more easily and cheaply, as well as having greater freedom for the use of such marks in advertising.
But some say the new, freer laws will eat into a company's ability to protect its brand, arguing that looser controls will lead to a free-for-all that might destroy a brand's value.
Others could face problems with a section of the new Trademarks Bill that aims to restrict registration of marks that would be likely to offend "a significant section of the community" - specifically Maori.
The bill will be followed by a rewritten Patents Bill.
Introduced into Parliament last month the Trademarks Bill has been based on the Singapore Trademarks Act.
The New Zealand bill will replace one legislated in 1953, which was based on a 1938 British law. But the changing face of business has left the British-based legislation outdated.
As service-based economies have developed, businesses have demanded protection for all elements of branding, including the intangible, the transcendent, and some might say, the plain unprotectable.
In 1994, New Zealand finally fine-tuned its act to allow trademark registration of such things as the sound of a Harley motorbike revving up, the Sunlight "squeak", jingles such as "where everyone gets a bargain", and even, in some cases, corporate colours.
For this, local lawmakers have simply followed trends set by trading partners.
In these economies, the widening of definitions as to what constitutes a trademark, allowing the registration of smells, sounds, and so-called "three-dimensional' marks, have been de rigeur for many years.
Almost everything is considered registrable, under the bill, unless there are specific grounds for refusal.
Previously, someone wishing to register a trademark had to prove that it fell into one of the categories (such as distinctive presentation of a name, a signature, invented words and graphics) and not into the contraband category (too similar to others, generic names, geographical names, or those that "mislead").
Now, most marks will be registrable unless proven otherwise, and crucially, a trademark submitted for registration that resembles another mark will not be automatically thrown out by the Commissioner of Trademarks.
If the applicant has proof that the competition is at ease with a proposed trademark, the commissioner will not be at liberty to refuse the mark.
Those involved in intellectual property issues tend to agree that the new conditions will go some way to clearing the red tape from the registration process. But brand owners face losing some control over the use of their trademarks.
Comparative advertising restraints have been peeled back and the "honest" use of a trademark to indicate some characteristic of other goods and services will not infringe under the new bill.
That means that wide-ranging use of a competitor's registered brand in comparative advertising will now be allowed ("brand X can clean in hot and cold water, while brand Y only works in cold".)
It also means that phrases such as "Rolls-Royce of escort agencies" or the "Hyatt of back-packers hostels" are potentially usable, which may concern some brand-owners eager to keep a premium profile.
John Glengarry, an intellectual property lawyer and partner with Buddle Findlay in Auckland, said this provision might be welcomed by many businesses and the public, which liked to see comparative advertising. But the use of other trademarks in advertising that were not direct comparisons could cause problems.
It would be in the area of sex, religion or politics that certain comparisons "may eat into the trademark owner's rights in the way some will find unpalatable", he said.
"Under the new law, you will not only be allowed to compare apples with apples but apples with rotten apples.
"This possibly goes too far for people who invest a considerable amount of time and effort on positioning their brand in certain ways."
Lynne Clifton, head of the Communications Agencies Association, said the Advertising Standards Authority's codes on comparative advertising were too restrictive.
They say that advertising should inform, "not to discredit, disparage or attack competitors, competing products or services directly or by implication," not be done in a "voice that degrades" and should "not be done only to upgrade by association".
"The general feeling of the [advertising] industry was that the old [current] comparative code was outdated and that, as is reflected in the new act, consumers find comparative advertising to be informative," Ms Clifton said.
"In Australia, comparative advertising such as Eagle Boys Pizza, which promotes itself as being an Aussie company rather than a multinational like Pizza Hut ... is allowed but our current codes wouldn't allow it."
Jeremy Irwin, of the Association of New Zealand Advertisers, said advertisers were wary of working with too much free rein in comparative advertising.
"I think it's a two-edged sword - it's a good opportunity to use brands or terms in a freer, more accessible way than previously but the problem is that brand values are part of a company's values, and protecting brand in a fair and reasonable way with this new legislation will be quite a problem. It can be fairly insidious if too free."
While comparative advertising is to be loosened, it seems the opposite sentiment is being used in protecting Maori sensibilities. Trademarks will not be registered and registrations can be revoked retrospectively if use or registration of the mark would be likely to offend Maori. What is deemed to offend Maori will be decided by an advisory committee if a complaint is brought.
Mr Glengarry said trying to stop people using things that were "derivative, or appear to be derivative of Maori imagery or text"could possibly cause problems for people using images or text belonging to other Polynesian cultures.
He said while registering a trademark was still the best way to protect a company's brand, people could still use text or imagery that might be considered offensive to Maori by not registering a trademark. They would still be protected to some extent under the Fair Trading Act, and common law.
But Clive Elliott, a barrister specialising in intellectual property, technology and internet law, said protection for Maori culture was an attempt to make the law more attuned to society's differing perspectives and needs, which was important.
"It means that the [Intellectual Property Office], and business and professional advisers are going to have to be more attuned to cultural issues than in the past. This is the reality of living in a multi-cultural society and I think appropriate and timely."
He said the proposed changes would make legislation and the registration process more understandable and accessible.
* In Forum tomorrow: How do those who work with trademarks feel about the new regime?
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