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The rise, fall and convolution of the intent to use requirement under New Zealand trade mark law

Rob Batty

Keywords: trade marks; intention to use; Trade Marks Act 2002; NZ; United Kingdom; bad faith; proprietorship; cluttering

The ‘cluttering’ of trade mark registers with unused trade marks is an issue of contemporary concern. One mechanism that can be used to prevent ‘deadwood’ trade marks from getting on the Register in the first place is to ensure that a trader has a genuine intention to use the trade mark. Indeed, the enactment of the first registration legislation in the United Kingdom (UK) was followed by a judicial insistence that a trader could not ‘properly register a trade mark’ if the trader did not have bona fide and present intention to use the trade mark. An intent to use requirement remains a feature of New Zealand (NZ) law, though it has a much reduced sphere of operation under the Trade Marks Act 2002. Tracing historical developments, this article examines how the regulation of the intent to use requirement has evolved under NZ law. This exercise provides a useful lens for understanding how and why the intention to use requirement operates as it currently does. Further, by examining the history of the intent to use requirement, the article also illuminates that there is nothing intractable about how NZ trade mark law has opted to regulate intention to use, and NZ law may be adjusted to better address concerns like cluttering.

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