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The meaning of “litigation”

Generally speaking in the intellectual property field “litigation” describes an adversarial process by which one party tries to restrain another party from engaging in certain types of conduct by obtaining an order to that effect from a third party (usually a court).

Forms of IP litigation

In the intellectual property field the most prevalent forms of litigation involve:

  • Breach of patent rights
  • Breach of the rights conferred by a registered trade mark
  • Breach of a registered design right
  • Breach of copyright rights
  • Breach of other common law rights under the Fair Trading Act or via the tort of passing off
  • Challenging intellectual property rights

You can find more detailed information about the nature of each breach in the information sheets below and/or in the “Fair Trading in New Zealand” section of our Information portal.

IP litigation before the Intellectual Property Office of New Zealand

Some adversarial intellectual property matters are conducted before the Intellectual Property Office of New Zealand (IPONZ). For example, patent applications and trade mark applications can both be challenged through opposition processes, and registered patents and registered trade marks can be challenged through revocation procedures. Matters conducted through IPONZ may be resolved faster and at lower cost than through a court.

IP litigation in New Zealand courts

The majority of litigation in the intellectual property field is conducted in the High Court rather than the District Court. That is because a number of the Acts which confer registered intellectual property rights require proceedings to be filed in the High Court.

In addition, intellectual property cases usually involve damages in excess of the $350,000 threshold for actions in the District Court, and many litigants perceive that High Court judges have greater expertise in the intellectual property field and would prefer their case to be decided by a High Court Judge.

General procedure in the High Court

Cases in the High Court are governed by a complex set of procedural rules (known as the High Court Rules). Nonetheless virtually every case will follow the same format:

  1. Claim filed
  2. Defence filed
  3. Parties exchange lists of relevant documents in their possession
  4. Documents mutually inspected
  5. Written statements of evidence exchanged (usually sequentially)
  6. Matter heard
  7. Judgment issued

You can find out more about the High Court procedures in intellectual property cases by reading our information sheet: “Procedure in a standard civil action in the High Court“.

In some cases the above procedure will also involve a judicial settlement conference. This is a form of court-ordered alternative dispute resolution (or “ADR”). You can find out more about judicial settlement conferences (and other forms of ADR) by reading our information sheet: “Alternative dispute resolution“.

For more detailed information about litigation in different areas of intellectual property law, click on the information sheets below, or to learn more about the expertise of our Litigation team click here.