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Geographical Indications in New Zealand: Understanding ‘Passing Off’  

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Geographical indications (GIs) play an important role in protecting your business’s intellectual property. GIs protect goods that derive their qualities or reputation from their place of origin. New Zealand is renowned for its high-quality agricultural products and understands the importance of GIs in protecting its diverse regional offerings. However, ‘passing off’ has adverse implications for GIs. This article will take you through what passing off is and how this impacts GIs in New Zealand.

What Are Geographical Indications?

GIs are a type of intellectual property that identifies a good as coming from a specific geographical origin and attests to the: 

  • quality;
  • reputation; or 
  • other characteristic of a good or service.

GIs in New Zealand are typically associated with goods such as wine and spirits or agricultural goods. This is because the originating region’s characteristics substantially influence the qualities of the goods.

How Do I Protect Geographical Indications?

New Zealand has an established framework to protect GIs. This framework apply both domestically and internationally. For example, the Geographical Indications (Wine and Spirits) Registration Act 2006 includes a tool for registering GIs associated with certain alcohol produced in New Zealand.

This registration gives alcohol producers the exclusive right to use the registered GI. This protects against others from trying to take advantage of the region’s reputation.

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What is Passing Off?

‘Passing off’ refers to the unauthorised use of a trade mark or other representation that misleads consumers about the origin of a good. 

In a GI context, passing off occurs when someone falsely represents their good as coming from a specific area known for producing goods of a particular quality. For example, Marlborough is known for its wines. A business producing wines outside of Marlborough but trying to sell wines as coming from the region would be ‘passing off’.

How Do I Know if Someone is Passing Off?

Acts of passing off can be difficult to identify. Three elements must be met to show passing off has occurred in New Zealand. This includes:

  1. Reputation: The person must provide that their goods or services have a certain reputation based on their place of origin.
  2. Misrepresentation: The misleading party must be attempting to lead consumers to believe that their products or services come from a particular area.
  3. Damage: The misrepresentation must damage the goodwill or reputation of the other business. Usually, this will take the form of financial harm.

How Do I Protect My Business From Passing Off?

As a reputable business owner, you do not want to be found to be committing acts of passing off. If you are found to be committing acts of passing off, it is likely that your business will suffer reputational damage. 

You must actively take measures to protect your business from passing off. For example, you must register your GIs under the relevant law to secure their exclusive rights. This will give you legal rights and protection in case someone uses the GI without permission.

Next, you must actively monitor the market. Regrettably, your competitors may engage in acts of passing off and use your GIs on their products. By monitoring the market, you can easily identify any misrepresentations by your competitors. The sooner you identify a misrepresentation, the sooner you can address it and protect your business. 

Finally, taking quick action against misrepresentation is critical. By taking action in a timely manner, you stop ongoing acts of misrepresentation. Further, by acting in a timely manner, you also deter others from engaging in similar behaviour in the future. 

Overall, you must develop a comprehensive plan to:

  • register;
  • monitor; and
  • enforce your GI rights.
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Key Takeaways 

GIs play a critical role in the world of intellectual property. After all, they help to protect goods that derive their qualities or reputation from their place of origin. This is particularly important in New Zealand, which is famous for its high-quality goods. However, the concept of passing off can threaten the integrity of your GI.

Some key concepts to understand about GIs include:

  • what they are;
  • how you protect your GIs;
  • know what passing off is;
  • how to identify passing off; and
  • how to protect your business from such misrepresentations. 

If you need assistance identifying and registering GIs for your business, contact our experienced intellectual property lawyers as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 0800 005 570 or visit our membership page

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Emily Young

Emily Young

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