Better enforcement of criminal provisions in Trade Marks and Copyright Acts

For several years brand owners and copyright holders have been expressing concern about the adequacy of enforcement of criminal provisions in New Zealand’s Trade Marks and Copyright Acts. As with other jurisdictions, New Zealand has been encountering increasing quantities of counterfeits and pirated goods at the border, in markets and in normal retail outlets. In addition, there is evidence of the involvement of organised crime in the manufacture, importation and distribution of these products.

New Zealand Customs have reported that the volume of counterfeits being imported has increased by over 400% in recent years. Canny importers of counterfeits now review the border enforcement notices that are in place and then import those brands that have not lodged such notices.

In such cases criminal enforcement is often an essential weapon - particularly the ability to use search warrants to obtain evidence.

Although the New Zealand Police have responsibility for enforcement of the criminal offence provisions, brand owners and copyright holders have encountered a lack of any consistent enforcement and in some cases refusal by New Zealand Police to take action (claiming lack of resources). Stakeholder anger at this situation has led to the Ministry of Economic Development (MED) publishing a paper on 5 July 2006 proposing an alternative enforcement agency, the National Enforcement Unit (NEU).

The NEU is a business unit of MED responsible for investigating and prosecuting various forms of regulatory crime including offences under a number of Acts on behalf of the Official Assignee, the Registrar of Companies and the Registrar of Motor Vehicle Traders. The paper proposes a targeted role for the NEU in the enforcement of copyright and trade mark offence provisions and sets out the resources and powers that would be required for it to take on the additional functions and responsibility.

Stakeholders such as film and television copyright owners, record companies and apparel and garment brand owners are welcoming the move but are urging MED to accelerate introduction of the necessary empowering legislation. A tentative timetable put forward by MED would not see the new legislation introduced until May 2007, thus delaying implementation until the end of 2007. Not unreasonably, brand owners and copyright holders are concerned at a further lengthy delay.