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Trade Marks Act 2002

Legal proceedings - Civil proceedings for infringement - Acts not amounting to infringement

97A: Exhaustion of rights conferred by registered trade mark

You could also call this:

"How goods with registered trade marks can be sold without breaking the law"

You can use a registered trade mark on goods that have been put on the market anywhere in the world under that trade mark without infringing it. This is allowed if the goods were put on the market by the owner of the trade mark, with their permission, or by someone associated with them.

An associated person can be a company in the same group, a company with mostly the same members or under the control of the same people, or someone who has control over how the trade mark is used. Control means being able to allow the use of the trade mark or having a big influence on how it's used.

A group of companies includes a main company and the companies it owns. This is defined in another law called the Companies Act 1993.

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This page was last updated on

View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM164692.

Topics:
Business > Intellectual propertyMāori affairs > Te reo Māori
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97: No infringement for use in relation to certain identical or similar goods, or

"Allowed use of trade marks on certain goods"

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98: When owner or licensee consents to use of registered trade mark, or

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Part 4Legal proceedings
Civil proceedings for infringement: Acts not amounting to infringement

97AExhaustion of rights conferred by registered trade mark

  1. A registered trade mark is not infringed by the use of the trade mark (including use for the purpose of advertising) in relation to goods that have been put on the market anywhere in the world under that trade mark under any 1 or more of the following circumstances:

  2. by the owner:
    1. with the owner’s express or implied consent:
      1. by an associated person of the owner.

        1. For the purposes of subsection (1)(c), a person is an associated person of the owner if—

        2. they are in the same group of companies; or
          1. they are both bodies corporate and they consist of substantially the same members or are directly or indirectly under the control of the same persons; or
            1. either of them has effective control of the other's use of the trade mark; or
              1. a third person has effective control of the use of the trade mark by each of them.

                1. For the purposes of subsection (2),—

                2. group of companies includes a holding company and its subsidiaries within the meaning of section 5 of the Companies Act 1993; and
                  1. a person has effective control of the use of a trade mark if that person may authorise the use of the trade mark or has significant influence over how it is used, regardless of how that authorisation or influence arises (for example, whether directly or indirectly and whether by way of proprietary interest, contract, arrangement, understanding, a combination of those things, or otherwise).

                    Notes
                    • Section 97A: replaced, on , by section 16 of the Trade Marks Amendment Act 2011 (2011 No 71).