Border Enforcement of Intellectual Property Rights: A Look at New Zealand

Abstract

Since 1994, New Zealand Customs has had a broader ability to detain goods/items appearing to infringe trade marks or copyright. In undertaking this function, Customs must act as an interpreter and enforcer of trade mark and copyright laws. This raises a myriad of issues, as intellectual property is a highly technical area of law, where infringement is heavily fact-dependent. This article surveys the extent to which intellectual property rights owners have used Customs’ mechanism and Customs has applied its authority. This is followed by an analysis of how Customs determines infringement, the relationship between the role of Customs and the role of the courts, and the resultant differing standards of infringement. The article concludes by examining Customs’ expanded authority due to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, what this potentially means for New Zealand as a net intellectual property importing country, and how this affects the power dynamics between the rights-holder and the importer.