38. The representative of New Zealand said that with respect to the Chair's first two questions and in response to the EC's question how Members would consult the register, the room document had pointed out that the answers were quite specific to domestic systems. This was why in the past his delegation had explained in some detail how New Zealand would implement such an obligation, which, in summary, would involve amending the internal procedures of the trademark office to require examiners to consult the register when assessing the registrability of certification and other trademarks. In New Zealand, GIs were also protected through unfair competition and consumer protection law, so an obligation to consult the register would ensure that GI owners could use the register as evidence in establishing a case, whether it was under unfair competition, consumer protection or some other cause of action.
39. Similarly, the question of the significance or weight which decision-makers would give to this evidence was a complex legal question. It was implausible to prescribe exactly how that was done in every Member, because it depended on the specifics of particular cases and on the mechanics of different national systems of protection. In New Zealand, for example, various common law principles of administrative law would have quite a significant impact on what significance and weight would be given to this evidence. This being said, it could not be assumed that all intellectual property regimes and legal systems of Members operated in this way, which was why his delegation had proposed to have more exchanges of information on how decision-makers in domestic systems in the myriad of different systems would carry out that obligation. His delegation was hopeful that such exchanges might yield some common elements that could be sensibly elaborated. Australia had already mentioned some possibilities in that regard. Against that background, he did not agree with Switzerland's view that Members had a full understanding of the various domestic systems, and were therefore ready to prescribe rules at the international level. While some Members, including the EC and Canada, had given details about their domestic systems, others, including Switzerland, had not done so recently. His delegation would be interested in hearing from those other trading partners.
40. He said that his delegation was interested in Brazil's comment that it was satisfied that the legal presumption in the TN/C/W/52 proposal would not adversely impact on prior trademarks and generics in their national system, as this was also one of New Zealand's principal concerns with legal presumption. In his delegation's view, the system proposed in TN/C/W/52 went in fact beyond a legal presumption, which could normally be rebutted by evidence, because the prescribed conclusion in TN/C/W/52 could only be rebutted by proof to the contrary. While his delegation took some comfort from Brazil's assessment that this would not in fact impact on the status of generic terms in its jurisdiction, it would like to hear the detail behind Brazil's assessment and exactly which considerations had given it that comfort.
