| Περίληψη: | In International Consolidated Business Pty Ltd v SC Johnson & Son Inc, the New Zealand
Supreme Court interpreted the New Zealand trade mark statute in a manner that leaves open
the possibility of unused marks whose registrations have been revoked turning into ‘zombies’
and blocking the registration of later, similar marks. In this article we explore the implications
of this decision for Australia. Specifically, we analyse the new normative justification for
recognising zombie marks put forward by the Supreme Court, and its reinterpretation of the
old British case on which the current Australian approach rests. We argue that both the
justification and the reinterpretation are unconvincing and ought not to be followed in
Australia. We also show that the Supreme Court’s decision rests on a misunderstanding of a
provision of the New Zealand statute that allows for orders for the removal of a mark to be
‘backdated’ to an earlier point in time, and suggest that while the introduction of such a
provision into Australian law would be beneficial, it should not be interpreted in such a manner
that would open the door to zombie marks.
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