Intellectual Property Enforcement
There is a growing problem around the world related to the trade in counterfeited goods and pirated copyright protected works (often referred to as counterfeits, fake goods or knock offs). For example, the World Customs Organization estimates counterfeiting and piracy accounts for five to seven percent of global merchandise trade, estimated to be equivalent to lost sales of as much as US$512 billion per annum. The World Health Organization estimates that up to ten percent of medicines sold worldwide are counterfeit.
The types of goods commonly targeted by counterfeiters are luxury items, because their retail price often greatly exceeds their costs to manufacture and distribute. Typical counterfeits are therefore fashion clothing, footwear and accessories like perfume, sunglasses, handbags, watches, caps and jewellery. New technologies have facilitated the copying, distribution and sale of pirated movies, music and software. Many other types of goods are also being counterfeited, such as auto parts, electronics goods, motorcycles, cigarettes, medicines, sporting equipment, toys, drinks and foodstuffs.
The sale of counterfeits deprives honest businesses of income, deters investment in the provision of quality products and services and damages the profitability of creative and innovative industries. There is a growing body of evidence that counterfeits can also pose serious health and safety risks through the use of inferior quality and sometimes poisonous ingredients, materials and manufacturing processes.
New Zealand is not immune to the problem of counterfeits. Trade mark owners and copyright holders are reporting a growth in the sale of counterfeits in New Zealand. This growth is reflected in New Zealand Customs Service ("Customs") statistics concerning the volumes of counterfeits being encountered at the border. For example, the volume of goods Customs has detained under the border protection measures prescribed in the Trade Marks and Copyright Acts have risen by over 400 percent since July 2000.
Under the Trade Marks Act 2002 it is a criminal offence for a person to:
- counterfeit a registered trade mark;
- falsely apply a registered trade mark to goods or services;
- make an object for making copies of a registered trade mark;
- possess an object for making copies of a registered trade mark; or
- import or sell goods with a false applied registered trade mark.
The Copyright Act 1994 makes it a criminal offence for a person, other than under a copyright licence, to:
- make for sale or hire;
- import (other than for private and domestic use);
- possess in the course of business with a view to committing any act of infringing the copyright;
- in the course of a business, sell or let for hire, offer or expose for sale or hire, exhibit in public, or distribute otherwise than in the course of a business to such an extent as to affect prejudicially the copyright owner;
an object that is, and the person knows is, an infringing copy of a copyright work.
A person convicted of an offence under either Act is liable on for a fine of up to $150,000 or imprisonment for a term of up to five years.
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