Where the onus lies when establishing whether a trade mark is eligible for registration is not expressly addressed in New Zealand's Trade Marks Act 2002 (2002 Act). The legislative background suggests the 2002 Act was intended to establish a presumption of registrability in favour of a trade mark applicant. Decisions before the Intellectual Property Office and the courts have not been consistent or clear about where the onus lies and how, if at all, a presumption of registrability affects this question. This article analyses the evidence literature, the historical background to the 2002 Act, existing New Zealand case law, as well as the approach taken under United Kingdom and Australian trade mark law. Drawing on such analysis, the article puts forward a reasoned explanation of where the onus lies during the examination of a trade mark application, in opposition proceedings and on appeal. The article concludes that the onus lies on the trade mark applicant to establish its trade mark is eligible for registration.
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