In New Zealand, the Trade Marks Act does not directly specify what constitutes bad faith. However, based on Court decisions, it seems that ‘bad faith’ includes dishonesty and dealings that “fall short of the standards of acceptable commercial behaviour observed by reasonable and experienced men”.
Further, it seems that the two most common circumstances that are considered to constitute ‘bad faith’ are:
1. an Applicant who is not the true owner of the mark; or
2. an application that is not made with a genuine intention to use the mark.
The issue of ‘bad faith’ could be raised as an objection during the examination phase of an application. However, this type of objection would only be raised in exceptional circumstances, for example if the trade mark concerned is well-known as being the trade mark of a particular company or individual, and where there is no apparent relationship between the applicant and the known owner of the trade mark.
However, generally speaking, Examiner’s tend to leave the issue of ‘bad faith’ to be dealt with during the Opposition stage and this ground is commonly invoked by foreign trade mark owners who find their trade marks usurped in New Zealand.