2. Patent Marking
New Zealand’s Patent Act 2013 does not impose a requirement for patent markings. However, the New Zealand Patents Act 2013 includes provisions designed to promote the marking of patented products to support enforcement.
Under Section 153 of the Patents Act 2013, the court must not award damages or an account of profits for patent infringement. In other words, a Court will not award damages for patent infringement if the alleged infringer proves that, at the date of infringement, they did not know and could not reasonably have known that the patent existed. Proper marking (with the NZ patent number) may be a helpful factor in showing that the defendant had reasonable grounds to be aware of the patent. To help ensure third parties are considered aware of your patent rights, when marking the product (or its packaging), it is advisable to include clear and specific details such as the patent or application number and country (e.g., "NZ"), as general statements like "Patented Product" may not be sufficient.
Typical examples of patent marking in NZ include:
New Zealand Patent no. XXXXXX, NZ Patent no. XXXXXX, New Zealand Patent Application no. XXXXXX, NZ Patent Application No. XXXXXX.
3. Design Marking
As with the Patents Act 2013, New Zealand’s Designs Act 1953 also does not impose a requirement for design marking. However, the Intellectual Property Office of New Zealand (IPONZ) provides guidance on marking registered designs, and New Zealand’s Designs Act 1953 includes provisions designed to promote the marking of registered designs to support enforcement.
According to IPONZ:
“You can mark the article or its packaging with the unique IP number (for example, 'NZ Des. Ap. No. …' or 'NZ Des. No.'). In New Zealand, the application and registration number remain the same, and information like owner details and status can be checked by searching the Design Register.
It is an offence for anyone to falsely claim that they have a registered design.”
Section 13 of the Designs Act 1953 implies that in infringement cases a defendant will not be required to pay damages or account for profits if they can prove they genuinely did not know, and had no reasonable reason to believe, that the design was registered in New Zealand at the time of infringement.
And a product will not be considered properly marked for the purposes of defeating an innocent infringement defence unless the marking of the product includes the word “registered” (or an abbreviation), accompanied by the words “New Zealand” or “NZ” and the design registration number.
So, for example, “Registered Design” on its own is not enough—it must say something like:
NZ Registered Design No. XXXXXX, New Zealand Registered Design No. XXXXXX
However, it is an offence to mark a product inaccurately or misleadingly that a design is registered in New Zealand or to suggest that a design is still protected after its copyright in a registered design has expired. This includes marking products with phrases like “registered in New Zealand” when no valid registration exists.
Typical examples of design marking in NZ include:
New Zealand Design No. XXXXXX, NZ Design No. XXXXXX, New Zealand Design Application No. XXXXXX, NZ Design Application No. XXXXXX
4. When Is It Appropriate To Mark Your Product?
You may mark a product once a design application or patent application has been filed in New Zealand. However, if marking is done after filing but before grant, it must not be misleading. In such cases, you must clearly indicate that an application is pending. For example, you may use:
“NZ Patent Application No. XXXXXXX”
“NZ Design Application No. XXXXXXX”
This type of marking is acceptable as long as it accurately reflects the status of the application.
All markings, whether for pending or granted rights, must be accurate and include the words “New Zealand” or “NZ”, along with the correct application or registration number, to avoid false representation.
5. No Marking? Still Enforceable
Unlike some jurisdictions which limit damages in the absence of marking, New Zealand allows full enforcement of patents and designs even if the product is not marked. However, failure to mark may weaken a claim that an infringer had actual or constructive knowledge of the IP right, which is a relevant consideration under both Section 153 of the Patents Act 2013 and Section 13 of the Designs Act 1953.
6. Virtual Marking
An alternative way is to use virtual patent or design marking where the relevant IP rights are listed on a publicly accessible website rather than directly on the product.
In such cases, the product or packaging may simply include the words such as “patented” or design registration along with the website address or a QR code that leads to a page listing the related IP rights. This page can also include details like the status of those rights, priority dates, and any other relevant information. One main advantage of virtual marking is its flexibility, it allows for easy updates, as the status of patents or designs changes, or as new applications are filed, without need to re-label physical products. For example, if a company launches a new product line covered by multiple pending and granted patents across several jurisdictions, they can simply update the online list referenced by the virtual marking (e.g., website URL or QR code on the product) to reflect the current status. This avoids the cost and logistical challenges of modifying packaging every time there is a change in IP protection.
To implement virtual marking successfully:
Virtual marking can significantly simplify export and import of goods by consolidating all relevant IP information in a single, centralised location. A dedicated webpage containing all IP rights across various jurisdictions for a particular product serves as a clear and accessible source of information for international stakeholders.
To avoid confusion for international users or third parties, the virtual marking page should explicitly identify the jurisdiction associated with each IP right, for example, “NZ Patent No. XXXX” or “US Design No. XXXX”. This clarity helps ensure that users understand the scope of protection in each region, facilitating smoother cross-border trade and enforcement.
As more jurisdictions adopt virtual marking laws, it is anticipated that this practice will further streamline global trade, reduce compliance complexity, and support efficient IP enforcement on an international scale.
While the United States and the United Kingdom have formally recognised the use of virtual marking, this is not the case yet in New Zealand. However, it may still play a useful role in providing constructive notice to others, especially when combined with traditional marking methods. Given the trend towards digitalisation and harmonisation of international IP practices, it is conceivable that New Zealand may in future consider legislative reform to formally recognise virtual marking. Until such legislative reform is enacted, the safest approach would be to use physical marking. However, if you wish to use virtual marking, it should be employed only as an adjunct, particularly useful for international trading contexts where virtual marking is recognised.
Given the differences in legal recognition across jurisdictions, we recommend consulting with an intellectual property professional to determine whether virtual marking is a suitable and legally sound option for your products.
7. Key Points
Authors: Pritesh Lohani and Kavitha Botla
