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AdvocateWinter 2015

The quarterly magazine of the Young Lawyers’ Committee Wellington

New Zealand Public Private Partnerships What’s the Deal?

Kendall, Kylie and the Celebrity Trade Mark

Taking Law Overseas

INSIDE THIS ISSUE:

There are numerous roles open to New Zealand lawyers wanting to work overseas so make the move now – gain international experience, increase your earnings and travel the world!

Through our global network of JLegal offices, we recruit lawyers with the leading law firms and corporations in the Australia, UK, US, Asia, Middle East, North & South America and the Offshores (including Cayman Islands, BVI, Channel Islands, Bermuda, Luxembourg and Malta).

For a confidential discussion about making the leap overseas, contact Damian Hanna today at damian.hanna@jlegal.com.

Your next career leap – made easy by JLegal.

New Zealand

Singapore

Middle East

ChinaLondon

Australia

Hong Kong

new zealandlevel 1, 124 willis street, wellington t | +64 4 499 5949

www.jlegal.com find jlegal onnew zealand melbourne sydney london singapore uae hong kong

JLegal were formally know as Simply Legal.

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YLC Advocate Winter 2015

Advocate Winter 2015Editors: Emma Bowman & Emily Bolton

Design: Rachel Lynch

Cover photograph by flickr user doyleshannon1980. Reproduced using a Creative Commons licence.

04Editors’ Note

05Convenor’s Note

06YLC Committee and

Executive 2015

07Upcoming Events and

the YLC Calendar

08New Zealand Public Private Partnerships:

What’s the Deal?– Catherine Shipton

12Kendall, Kylie and the Celebrity Trade Mark –

Hemma Vara

14Pursuing International

Law

15An International LLM

16Representing Animals

– Neha Goyal

18Lawyering for Good: Working with Youth

20Event Report – YLC

Quiz Night

22Event Report –

Bridging the Gap

23Event Report – Cyber Law Panel Discussion

24Event Report – GLN

and YLC Evening with the Principal Law

Officers

25Event Report – Mooting Final

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What would you like to see included in the

YLC Advocate?We’d love to hear any feedback about the magazine — especially from potential contributors! So please get in touch at emma.bowman@minterellison.co.nz

In addition we talked to Amelia Bleeker and Elizabeth Chan about what they have been doing since they left Wellington. Amelia is currently working at the Special Tribunal for Lebanon in the Hague. She has shared some interesting insights on page 14 about pursuing a career in international law. Elizabeth Chan has recently completed her LLM at Yale. Many young lawyers start thinking about doing a Masters overseas in their first few years of practise so if you have been thinking along those lines have a look at what she has to say on page 15.

If you want to use your legal skills for good, check out the contributions from Neha Goyal and Law for Change Wellington. Neha is the coordinator of the Wellington branch of the New Zealand Animal Law Association. Neha has outlined some of the work that the Association does on page 16. Law for Change has recently held an event “Working with Youth”. On page 18 we hear about some of the discussions between panellists at this event.

Skip to page 20 to see rundowns and photos of the events that the YLC has held in the past few months. On 23 April YLC’s Annual Quiz was held at Chicago Bar – our final event at Chicago as it has now closed down. In May, thanks to our partnership with the Government Lawyers Network young lawyers had the opportunity to hear from and meet the Solicitor General and the Attorney General at the Thistle Inn. Bridging the Gap continues to be a core part of the YLC’s role and was launched for 2015 in May at IPLS’s Wellington branch. Despite regional flooding the Cyber Law Panel Discussion went ahead on 14 May at Russell McVeagh with fascinating discussions celebrating 800 years of the rule of law in the Magna Carta.

For more information on the YLC, check out our website, and make sure to like our Facebook page to keep up to date with the latest YLC activities.

If you are interested in writing for Advocate, we would love to hear from you!

We also thank the YLC’s general sponsors: MAS and JLegal.

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Editors’ noteEmma Bowman and Emily Bolton

C O- E DI TOR S

We are excited to bring you the winter edition of Advocate for 2015. It is a great fire-side read. We have a highly informative article about Public Private Partnerships from Catherine Shipton and Hemma Vara has written an intriguing article on

trademarks and celebrities.

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It’s hard to believe the first half of 2015 has already passed us by. It’s not at all hard to see though that the Young Lawyers’ Committee has had a fantastic year so far. We began the year with our Opening Drinks, where we met the new faces of our profession in Wellington. I hope you’ve settled well into your new roles. The Grad Cruise was also a great evening; memorable in particular for our efforts in assisting some stranded sailors in Oriental Bay. The annual Quiz had another successful year with just the right amount of competitive spirit as we can expect from a room-full of young lawyers. We hope the honest winners were happy with their prizes. The joint Young Lawyers’-Government Lawyers Network Opening Event was well attended by lawyers both inside and outside the public sector, and we enjoyed this special occasion to meet and talk with both the Attorney-General and the Solicitor-General. The Bridging the Gap mentoring programme started with a bang this year with our opening drinks. Thank you to all who are coordinating this programme - a particularly valuable part of our work each year. The Cyber-Law panel discussion was an outright success. We discussed issues on information, power and the rule of law with six experts in this area (one of whom we beamed in from Washington, fortunately without any cyber issues!). We were overwhelmed with the level of interest in this event, and we’re pleased to see we struck a chord with so many of you. It was a real privilege to have taken part in this discussion with the panellists and all who attended (in spite of flooding crises!). Due to popular demand the Committee will consider organising another cyber-related event in the future.

The Wellington Mooting Competition opened successfully in the High Court on 26 May, and we had an amazing final on 18 June. Well done to our winners, and to all of the talented competitors! The winning team will go through to the inaugural YLC National Mooting Final later in the year in Wellington - we are very excited about it! We are looking forward to more unmissable events coming up:

• the Meet the Judiciary event, where we will get to meet Judges from all levels of the Judiciary on a more informal occasion;

• the Wellness event, at which we will have a top-class speaker talk about how to manage your health and wellbeing while making that big transition into the profession;

• our ever-popular Wine and Cheese event;• the annual Ball - to be held in early September; and• the Comedy Debate later on in the year.

Keep your eye out for these events, and we look forward to catching up with you then! Finally, I would like to say a big thank you to the Young Lawyers’ Committee, the 2015 Executive and to you all for making 2015 a great year so far. I am leaving New Zealand soon, and so have to resign from the YLC. I have full confidence in the Committee and Executive continuing the marvellous work they have been doing this year. The Deputy-Convenor, Rebecca Garden, is taking over as Convenor for the rest of 2015; please direct any queries and comments to Rebecca. All that remains is for me to wish you all the very best in continuing to settle in to the profession, and in doing whatever it is that you choose to do in the future - make it something that you truly enjoy.

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Convenor’s noteJelena Gligorijevic

S OL IC I TOR AT R u S S E L L MC V E AG H

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Committee Members 2015

YLC Executive 2015 About the YLC

Convenor Jelena Gligorijevic

Deputy Convenor Rebecca Garden

SeCretary Kate Driver

treaSurer Nicole Evans

SponSorShip offiCer Anna Whaley

profeSSional affairS offiCer

Steven Li

CommuniCationS offiCerS

Jennifer Howes Charlotte Christmas

marketing offiCer Emma von Veh

aDvoCate offiCerS Emma Bowman

Emily Bolton

The Wellington Young Lawyers’ Committee (YLC) is a committee of the Wellington branch of the

New Zealand Law Society.

It works to support young lawyers across the Wellington region by providing networking opportunities, relevant information and training, and by advocating for their interests. The committee currently comprises 26 volunteers from a range of firms and in-house teams in both the public and private sectors. An executive of 11 is responsible for running the YLC on a day-to-day basis.

If you’d like to the join the YLC, contact the Secretary, Jelena Gligorijevic at jelena.gligorijevic@russellmcveagh.com.

Andrew Row, Anna Whaley, Emily Bolton, Emma Bowman, Emma von Veh, Jelena Gligorijevic, Jennifer Howes, Jeryl-lynn Govender, Jessica Davis, Kate Driver, Maeve Jones, Matt Dodd, Melanie Jagusch, Nicole Evans, Nigel Salmons, Rachael Jones, Rebecca Garden, Rosie Hodson,

Seamus Woods, Steven Li, William Findlay, Yemo GuoNot pictured: Catherine Zhu, Charlotte Christmas

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Event Spotlight

meet the juDiCiary

Come along on Thursday 13 August to meet judges from the Supreme Court, the Court of Appeal and the High Court. This is a great opportunity for young lawyers to meet senior members of the judiciary. The evening will start at 5:30pm and run to 7pm at the Law Society’s Offices at 26 Waring Taylor Street. More details to come soon. Places are limited for this event so make sure you get in quick with your RSVP.

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Upcoming Events

Keep an eye on the Facebook page and YLC website for dates and more information about

upcoming events. The YLC has some great events coming up this year – check out what we’ve got on

offer, and come along!

jan may jun Sep oCtfeB mar jul aug novapr DeC

23 july Wine and Cheese Night

13 auguStMeet the Judiciary

5 SeptemBer Young Professionals’ Ball

young profeSSionalS’ Ball 2015

Save the date - the YLC is holding its annual Ball on Saturday 5 September! Join us for a glamorous night, with premium beers, wine and delectable food. Details are still be being finalised, so watch this space for more details!

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for adopting a PPP procurement model and, as such, there is no international consensus as to what constitutes a PPP.

PPP procurement has been implemented in New Zealand for the primary purpose of improving service outcomes from major infrastructure assets and in response to the government directive for greater private sector involvement in the delivery of such outcomes. The Government’s PPP Programme was established in 2009, and Government mandate now requires the evaluation of alternative forms of procurement, including PPP, for all significant infrastructure investments3.

The Treasury has established a “PPP framework” for New Zealand PPPs. In 2010, a model project agreement was developed for use in all social infrastructure PPP projects, and was updated in 2012 and in 2013. The purpose of the model project agreement is to provide a standard form PPP contract for the New Zealand market, which can be modified to suit the particular type of infrastructure project being procured by the public sector.

New Zealand Public Private Partnerships:

What’s the Deal?

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by Catherine Shipton B E L L G u L LY

On 29 April 2015, the Ministry of Education signed a $298 million public private partnership (PPP) contract with the Future Schools Partners consortium to finance, design, construct, and maintain

Ormiston Junior College in Auckland, Aranui Community Campus and Rolleston Secondary School in Canterbury and Wakatipu High School in Queenstown. This is the fourth PPP project deal to be

signed in New Zealand as part of the Government’s PPP Programme.

It follows the Hobsonville Schools PPP contract signed in April 2012; the Wiri Prison (now Auckland South Corrections Facility) PPP contract signed in September 2012 and the Transmission Gully PPP contract signed in July 2014.

While there has been limited use of the PPP procurement model in New Zealand prior to these projects, the sector is now very active – the upgrade of Auckland Prison is set to be implemented under a PPP model1 and the New Zealand Transport Agency has now received approval from Cabinet to commence procurement of the design, build and financing for a motorway north of Auckland from Puhoi to Warkworth2. If PPPs continue to be implemented as a delivery model in New Zealand, PPP pipelines for particular types of infrastructure are likely to emerge.

But while “PPP” appears to be the new buzz word in contracting methodology, those young lawyers that are unfamiliar with model may be thinking – “what’s the big deal?”. The purpose of this article is to provide an overview of the PPP model in New Zealand. Welcome to the basics: New Zealand PPPs 101.

History

PPP structures have been used in both developed and developing overseas jurisdictions for many years for a variety of infrastructure assets. Each jurisdiction has different incentives and policy rationale

1 Business Desk “Govt announces $200m-plus PPP makeover for Paremoremo prison” The National Business Review (online ed., New Zealand, 25 October 2013). 2 News Desk “Private funding sought for Puhoi-Warkworth road” Radio New Zealand (online ed., New Zealand, 27 May 2015).3 Cabinet Office Circular “Investment Management and Asset Performance in the State Services” (29 June 2015) CO (15) 5 at [70].

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structure of a New ZealaNd PPP

At their core, New Zealand PPPs are a form of government procurement involving whole-of-life single term contracts for the financing, construction and operations/maintenance of infrastructure facilities. The private sector contractor (usually a special purpose vehicle) is required to first design, construct and finance an asset (during the “D&C phase”) and then to operate and maintain that asset on a long-term basis (the “O&M phase”). The capital (both equity and bank debt) is applied to the development of the asset, with the public sector partner only paying for services once the asset is operational and the services commence.

This is distinct from conventional forms of asset procurement, where the procuring entity separately finances both the design and construction of an asset and the operation and maintenance of the asset following construction, or takes over the operational responsibility of the asset itself. Instead, the main focus of a PPP contract is the delivery of public sector-specified service outcomes (rather than the delivery of an asset) through the enhancement of private sector innovation and expertise. Refer to Figure 1.

The procuring entity develops particular service outcomes for delivery to the public by the private sector partner based on policy rationale, which will be unique to each infrastructure project to a degree. A summary of the core policy rationale of the New Zealand PPP model to date, and the contractual mechanisms by which these are captured in the model project agreement, are each set out in Table 1.

PPP procurement Conventional private sector procurement

Figure 1: PPP vs. conventional procurement.

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Public Agency Treasury

(financier)

Public Agency

Design and Construction

Operation and Maintenance

Consortium

Financier

Design and Construction

Operation and Maintenance

Figure 1: PPP vs. conventional procurement

PPPs can be used for large public infrastructure projects such as new roads.

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wHy cHoose PPP ProcuremeNt?

PPPs have a number of advantages over conventional procurement – some of these are discussed below.

Focus on outcomes. Conventional procurement focuses on inputs to determine how an asset behaves. The object of a PPP, however, is on the service outcomes and the asset is seen as the enabler for the provision of such services as part of an integrated design and asset solution. This means the public sector partner can get what it wants from a policy perspective as the paramount objective. It is important that the parties accurately specify the service outcomes and the measurements (being key performance indicators (“KPIs”)) for how these are to be met to properly incentivise delivery of the services. For example, an outcome sought in the Auckland South Corrections Facility PPP project is the rehabilitation and reintroduction of prisoners, so specific KPIs were included in the contract to measure the rate of recidivism and employment outcomes of prisoners following their release from prison. By accurately specifying the outcomes and the KPIs, the public sector

There is delivery of services by a private sector partner (the service outcomes) during a long term operating period following construction of an infrastructure asset.

There is appropriate risk transfer and management.

There is certainty of cost.

There is an appropriate payment for performance regime to incentivise the delivery of specified service outcomes and penalise non-performance.

The procurement is ”value for money” for the public sector above other conventional methods.

• The agreement is a long term fixed price contract for the design, build, finance, operation and maintenance of the asset.

• The public sector partner specifies, and the private sector partner delivers, the service outcomes required over an operating period (usually 20 years plus).

• The private sector partner designs and constructs the asset over a construction period (usually 2 – 5 years) in order to deliver the required service outcomes.

• Operational control of the asset is returned to the public sector partner at the end of the term at no cost.

• Risk is allocated to the party best able to manage that risk. • Ownership of the asset is retained by the public sector partner. • Financing of the asset (both equity and bank debt) is provided by the private

sector partner. • The contract includes protections so that the public sector partner retains

appropriate levels of control during each phase of the project, including the ability to ‘step-in’ and take full control of the asset in certain circumstances.

• The parties are able to more accurately cost the project through certainty of risk allocation and transfer.

• Price re-openers are narrow and known. • The private sector partner has maximum certainty of revenue stream over life of

project.

• The public sector partner only pays for actual delivered service performance based on achieved outcomes over the contract life, rather than for prescriptive input specifications that relate to the asset itself.

• Payments to the private sector partner are made either as an availability payment or a user-payment on a monthly / quarterly basis following service commencement during the O&M phase (i.e. no payments are made to the private sector partner during the D&C phase).

• Abatements are applied to payments to the private sector partner for non-performance and failure to achieve the desired service outcomes.

• The price for the service outcomes is determined through a competitive process with the private sector, to deliver the best available value for money services.

Table 1: Key policy rationale and contractual framework for the New Zealand PPP model

partner can be satisfied as to how the outcomes will be met; and the private sector partner is provided with certainty of its revenue stream through meeting these outcomes.

No service, no payment. PPPs typically have a complex performance regime and payment mechanism, however, the basic premise of this is: if you don’t perform, you don’t get paid. If the service outcomes are not met to the required standard, payment is abated in proportion to the level of underperformance. This is risky for the private sector partner, as it finances the build of the asset over the D&C phase without any public sector capital. The private sector partner is incentivised to ensure good performance to meet the specified outcomes and maintain the quality of service for the life of the project. For example, in the Transmission Gully PPP project, if certain vehicle travel time metrics are not achieved, abatements will be applied to the quarterly payment received by the contractor during the O&M phase. The contractor is therefore incentivised to, first, design a road that will allow drivers to reach their destinations within the relevant timeframes and, secondly, to ensure the road is available and operable at all times.

Core poliCy rationale ContraCtual meChaniSm

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Figure 2: Key participants.

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Public Sector Partner

Private Sector Partner

(Contractor)

Security Trustee

Independent Reviewer

Design and Construction Major

Sub-contractor

Management services provider

Operation and Maintenance Major

Sub-contractor

Equity Providers

Debt Providers

Active management and transfer of risk. PPP contracts are structured so that risks are allocated to the party best able to manage or absorb each risk. For example, the private sector partner generally takes design and lifecyle cost risk (including regarding any cost overruns and delays associated with this), whereas the public sector partner takes certain change of law risk since it is better placed to manage (or, if not, to absorb) the risks of change of law processes and decision-making.

Other advantages of PPP contracts include: • maximisation of the use of private sector skills and innovation; • delivery of budgetary certainty for public sector over a long period; • a whole-of-life perspective that provides cost certainty; and• value for money procurement (as assessed against a hypothetical,

risk-adjusted whole-of-life cost of a public sector project if delivered by the public sector).

PPP ProcuremeNt Process

As PPP contracts are complex and the procurement timeframes can be lengthy, it is likely that PPP procurement will only be sought for projects of large scale and long duration where: the outcomes can be narrowly specified; there is a need for private sector innovation; and there is enough depth in the market for a competitive process.

The procurement process for a PPP is relatively standard. It involves expression of interest (“EOI”) and request for proposals (“RFP”) tender processes to select a preferred bidder, followed by negotiations that lead to the contractual and financial close of the project. The key participants that are likely to be involved during a PPP project are set out in Figure 2.

youNg lawyers’ iNvolvemeNt iN PPPs

So what does this all mean for young lawyers? As the market for PPPs becomes more established in New Zealand, more young lawyers will be required to assist in PPP deals. Amongst other activities, this may involve:

• providing advice on process and probity requirements during procurement;

• providing advice on legislative and regulatory issues; • preparation of EOI and RFP documentation for the procuring entity;• preparation of bid documentation for the private sector bidders; • evaluation of bid materials; • negotiation of the final contract; • negotiation of the final sub-contracts, financing agreements and

equity agreements for the private sector partner, its providers and its major sub-contractors; and

• ongoing advice for all parties during implementation of the project

coNclusioN

New Zealand’s PPP model has been developed from the PPP projects in this country to date. The model is likely to continue to evolve in order to apply to new types of social infrastructure and to adapt to shifting market conditions. This creates new and exciting opportunities for young lawyers to get involved in these large deals and develop a PPP knowledge that extends beyond the basics. A

Figure 2: Key participants

As PPP contracts are complex and the procurement timeframes can be lengthy, it is likely that PPP procurement will only be sought for projects of large scale and long duration.

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In April 2015, Kendall and Kylie Jenner made various applications to the united States Patent and Trademark office to trade mark their monikers, as follows:

The filing of these recent applications is a perfectly logical move on Kendall and Kylie’s part.

Kendall, Kylie and the Celebrity Trade Mark

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by Hemma Vara

1 April 2015

17 April 2015

21 April 2015

filing Date

KYLIE

KYLIE JENNERKENDALL & KYLIEKENDALL AND KYLIE

KENDALL AND KYLIE

traDe mark

Advertising services, namely, promoting the brands, goods and services of others; endorsement services, namely, promoting the goods and services of others

Entertainment in the nature of providing information by means of a global computer network in the fields of entertainment, fashion and pop culture; entertainment services, namely, personal appearances by a celebrity, actress and model

All-purpose carrying bags; Athletic bags; Back packs; Cosmetic bags sold empty; Cosmetic carrying cases sold empty; Duffle bags; Handbags; Purses and wallets; Tote bags; Umbrellas

Belts; Bottoms; Coats; Dresses; Footwear; Gloves; Headbands; Headwear; Jackets; Loungewear; Scarves; Sleepwear; Socks; Swimwear; Tops; Undergarments

relateD gooDS & ServiCeS

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1 Lisa Robinson “Jay Z on His Rags-to-Riches Story, Wooing Beyoncé, and How Blue Ivy Is His “Biggest Fan” Vanity Fair (online ed, New York, 1 October 2013) <http://www.vanityfair.com/culture/2013/10/jay-z-beyonce-blue-ivy-story>2 Bosh v. Zavala, No. 08-04851 (C.D. Cal. Sept. 24, 2009)3 Fenty v Arcadia Group Brands Limited [2015] EWCA Civ 3

The key point is that a celebrity may have considerable goodwill attached to their name. In that case, trademarking their name is simply part of a savvy business strategy, which allows them to decide when and how to utilise that goodwill for commercial gain. The practice is not uncommon; in the past, celebrities have successfully trade marked their names, alter egos and even their expressions.

Importantly, a registered trade mark protects against the unauthorised use of a celebrity’s name. Such use could diminish the value of their brand or garner negative attention. This is something that any business owner would want to avoid. Jay-Z puts it succinctly when speaking of his and Beyoncé’s decision to apply to trade mark their daughter’s name: “you don’t want anybody trying to benefit off your baby’s name”1. However, we note that the trade mark for BLuE IVY CARTER has not yet passed registration; uS law requires a statement of use to be filed which proves the trade mark is in use in commerce in relation to specified goods and services.

Another benefit of owning a trade mark is that it allows you to enter into licensing agreements with third parties. Essentially, the celebrity owner can assign the rights in their name to a third party subject to terms outlining the extent to which their name can be used, so as to protect their personal goodwill. It is not uncommon for celebrities to do this, many venture out into the likes of perfume collections and clothing collaborations.

A registered trade mark may also assist a celebrity or business owner in recovering a domain name that is already registered. In 2009, NBA player Chris Bosh was dubbed a “cyber hero” when he successfully fought and recovered his and hundreds of other celebrity domain names from a cyber squatter2.

Closer to home, we recently heard of the dispute between musician Tiki Taane and X-Factor. Tiki complained that his name and brand were being exploited to advertise the show, expressing his distaste via an open

A trade mark registration alone may not be sufficient to protect a celebrity’s image.

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letter to the NZ Herald. We’re disappointed for Tiki, and wonder if this incident has spurred him to seek professional advice on how to protect his brand.

Going back to Kendall and Kylie, TMZ did raise the argument that if their applications were successful, Kylie Minogue or anyone else named Kylie would no longer be able to use their name for endorsements. There is, however, an own name exception in uS (and NZ) allowing individuals to use their name for commercial activities. Even so, this exception is not absolute – there may still be issues if the name is likely to cause confusion with the registered trade mark.

Of course, a trade mark registration alone may not be sufficient to protect a celebrity’s image. In January 2015, Topshop lost an appeal in the English and Wales Court of Appeal against Rihanna, who successfully relied on the tort of passing off 3. Topshop had used Rihanna’s image on a top, of which they sold approximately 12,000 units over a 5 month period in 2012. Rihanna argued their actions were damaging to her goodwill; a significant number of customers were likely to have been deceived into buying the t-shirt, thinking it was authorised by Rihanna. Further, in New Zealand, provisions under the Fair Trading Act 1986 may also be applicable with regard to misleading and deceptive conduct.

ultimately, it is clear that regardless of a how a celebrity became famous they may well have a valid case to trade mark their name, although it is yet to be seen if Kendall and Kylie’s applications will be granted registration. A

This article was first published on www.courture.co.nz.

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Pursuing International Law

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In 2014 Amelia Bleeker left Wellington and headed to the Netherlands to work in international legal tribunals. In this article she shares her experiences from the world of international criminal justice with Advocate.

Since leaving Wellington you have worked at the International Criminal Tribunal for the former Yugoslavia, and now work at the Special Tribunal for Lebanon, both situated in The Hague. What type of work have you been doing at these tribunals?At the ICTY, I was part of a legal team providing support to trial judges in the Hadžić case. I drafted decisions on parties’ motions, performed legal research on questions of international criminal law, and summarised witnesses’ testimony. When the accused in my case become ill, I performed some interesting research on the fair trial rights of an ill accused and even looked at some New Zealand case law! In my current role at the STL, I provide assistance to Appeal Chamber judges, including former New Zealand judge Sir David Baragwanath. I analyse documents to assist the appeals procedure and research issues of international human rights and criminal law. This research often results in hearty debates with the judges!

In Wellington you worked in the litigation team at Minter Ellison Rudd Watts, and the legal team at the Ministry of Social Development. What made you decide to change career course and pursue international law?I was instantly attracted to international law at university and, in particular, became passionate about international human rights law. After gaining some solid work experience in Wellington, I decided to pursue this passion and change focus to international law. After my current clerkship at the STL, I will undertake a LLM in European and International Human Rights Law at Leiden university, near The Hague.

How did the skills you gained as a lawyer in Wellington prepare you for work at the tribunals?Working at both Minters and MSD put me in a strong position to pursue internships in The Hague. International criminal tribunals attract interns at varied stages of their careers but many are straight out of university. Having already worked as a litigation lawyer for a few years, I was able to jump straight into the work and be trusted with some challenging tasks. That said, interning without work experience is also rewarding and the tribunals are very good at supporting interns at all stages of their careers.

What are the best and worst aspects of working at the tribunals?The best aspects are being part of the development of international law and working with brilliant lawyers and judges from all over the world. I also found it very valuable getting an insider’s view into what it’s like to work for the uN and other international organisations. On the downside, internships are generally unpaid or only attract a stipend. A lot of young professionals choose to do them anyway because they are wonderful learning experiences and one of the main ways of getting a foot in the door to paid work at these institutions.

How do you find living in The Hague and the Netherlands?The Netherlands is an easy place to live. The Hague has a lot of international organisations as well as expats and the Dutch learn English from a young age, so you can generally get away with speaking English and a little “supermarket Dutch”. However, locals really appreciate it when you put a little more effort in and learn some Dutch. The first thing you do when you arrive in the Netherlands is buy a bike – the whole country is superbly set up for cycling and it’s a nice way of life getting around on a bike. I am part Dutch and have some family in The Netherlands, so it’s been great getting to know them and the Dutch way of life. The Netherlands is also conveniently placed for excellent weekend travel around Europe!

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An International Masters Degree

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Elizabeth Chan is a graduate of the University of Auckland and was a judge’s clerk at the Supreme Court in Wellington in 2012-2013. She has just completed her LLM at Yale University. She shares with Advocate the factors that drew her back to uni and her experience of studying in the United States.

Why did you decide to do an LLM?I decided to do an LL.M to learn about the law in a different context. I was particularly interested in studying in the united States because legal education there seemed very different compared with our legal education. For example, law is a graduate degree in America so J.D. law students usually have a four-year college (undergraduate) degree before they start law school. I was also interested in the clinical legal educational programs, where students have the opportunity to work for real clients under the supervision of law faculty. I had also heard that there was a heavier emphasis on studying law in its policy context (and less of an emphasis on learning black letter law).I chose to do my LL.M about two years out from graduation, after having clerked for two years at the New Zealand Supreme Court, and after interning in some international arbitration roles in Hong Kong. It felt like the right time to further my academic interests in the law, particularly to deepen my knowledge of international arbitration and also to have the time to write and research. What was the attraction of Yale?I was attracted to Yale Law School’s intimate community. Yale Law School is one of the smallest law schools in the united States, both in terms of its LL.M program and the wider law school community. There are about 650 students in the law school in total. In my year we had 27 students in the LL.M programme. The smallness of Yale Law School has a lot of advantages. Professors have a very close relationship with the students. I was fortunate to have Professor Michael Reisman, a foremost authority on international law, as my faculty advisor. I had the opportunity to write a paper with him. My clinical professor hosted four dinners a year for his clinical students. During a particularly cold winter day, one of my other professors invited us to go sledding on a hill near his house and to enjoy hot chocolate at his house afterwards. Yale Law Women (a law students’ organization that supports women’s interests in the law school) also gave me (and other students) funding to host a professor for dinner with a small group of female students. I also found law school students to be really friendly -- both those in the

international graduate students’ community (i.e. LL.Ms, J.S.Ds, M>S.Ls, and Ph.Ds) as well as the mostly-American J.D. cohort. What was the highlight of your time at Yale?There were many highlights of my time at Yale, but I’ll only have space to mention a few! I loved the international travel I did -- I went on a trip to Nepal with my international human rights clinic, and also travelled to Hong Kong for an international commercial arbitration moot. There were also fantastic volunteering opportunities. I sat as an arbitrator in a hearing at the Connecticut Department of Consumer Affairs involving the application of Connecticut’s Lemon Law (which allows consumers to make claims against manufacturers for defective cars). I loved being part of the law revue, and helped with choreographing some of the dance numbers. It was also fun to be part of the Yale Journal of International Law, and to see how they did things differently to the way we ran the Auckland university Law Review (AuLR). For example, at Yale, many first-year students are involved in “source-citing”, which is what we know as checking the footnotes of an article for accuracy. When I did the AuLR, the editors did this source-citing by themselves, but at Yale, source-citing is a joint effort -- all the first-year editors get together and do source-citing together on an evening at the law school -- with pizza served!

What did you find challenging?The LL.M year is very intense -- it’s basically just nine months, running from August until May. There is an incredible amount of stuff to do. In addition to just settling in, it’s pretty intense making a lot of new friends, taking part in many opportunities, travelling around the u.S., while trying to do well in class and trying to write and research! It’s an incredibly rewarding year. I have made some really good friends, and formed a really important support network. What’s next?I’m currently staying in the united States for the American summer to do further study, and I’m planning to pursue a career in international arbitration. Final thoughts?I really loved my LL.M and would be very happy to chat with anyone who would be interested in doing the same! A

16 YLC AdvocAte

Representing Animals: How young

lawyers are using their legal skills to speak for those who can’t

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Neha GoyalW E L L I NG TON C O OR DI N ATOR F OR T H E N E W

Z E A L A N D A N I M A L L AW A S S O C I AT ION

The activities of NZALA include: • Promoting positive legislative reform of animal law by making

submissions to Select Committees, the National Animal Welfare Advisory Committee, and other bodies;

• Improving public awareness of animal law by organising public lectures and seminars;

• Providing free legal assistance to animal protection organisations; and

• Growing the field of animal law at New Zealand law schools through community placement programmes.

NZALA is also looking to assist with animal welfare prosecutions.

NZALA was set up in 2014 by Danielle Duffield, founder of the Otago Animal Legal Defence Fund, and Lucy Leadbetter, both lawyers in Auckland. It became an incorporated society in late 2014 and currently enjoys a broad membership base of over 100 lawyers spanning varied areas of practice through New Zealand. NZALA is also privileged to be supported by two honorary patrons: the Honourable Michael Kirby AC CMG Australia, and Dr Arnja Dale.

The forming of NZALA was contemporaneous with the progression and ultimate passing of the Animal Welfare Amendment Act 2015. This amendment Act modified the Animal Welfare Act 1999 with the intention of improving the enforceability, clarity, and transparency of New Zealand’s animal welfare regime. The new Act provides for the creation

The New Zealand Animal Law Association (NZALA) is a new organisation of lawyers and legally trained personnel working to

improve the welfare and lives of animals through the legal system. NZALA welcomes practising lawyers as well as law students

into the organisation. Applications for membership can be made through our website at www.NZALA.org.

of directly enforceable regulations, and aims to improve the enforcement of low-mid level animal welfare offending by enabling animal welfare inspectors to issue infringement fines and compliance orders. This is important because the burden of enforcement and prosecutions brought under the Animal Welfare Act 1999, as far as companion animals are concerned, falls on the Royal New Zealand Society for the Prevention of Cruelty to Animals (RNZSPCA). The RNZSPCA is a private charity that relies on public donations for its funding.

The current climate of reform is an exciting time for NZALA as it enables it to lend its specialist legal expertise to provide input on and to meaningfully impact the development of the new welfare regime. It looks forward to being involved in the formulation of the new regulations that will be promulgated pursuant to the passage of the new Act.

Of particular importance is that the Act, in its long title, acknowledges the sentience of animals. Symbolically speaking, this is a significant change to the perception and legal status of animals in New Zealand. As an organisation, NZALA is committed to ensuring that this long title is manifest in an operational sense and not lost or left to serve as window dressing. Whilst the Act seems to bring about a new era for the improvement of animal lives, its practical impact remains to be seen. Much of its credibility will depend upon its enforceability and the way it is interpreted and given effect to by the public sector and judiciary. NZALA’s mission is to ensure that animals receive the best possible

WINTER 2015 17

food labelling. NZALA is also looking to gather resources and funding to support its work. In Wellington, NZALA has strategically partnered up with key agencies, including Community Justice Project (CJP) and Victoria university of Wellington. CJP have provided a team of law students who have been tasked to assist NZALA with researching the new law and its implications. NZALA is also assisting local animal protection organisations with compliance and legal research.

how you Can get involveD NZALA welcomes lawyers and law students to apply for membership through our website. As a member, you will receive our newsletters and be kept up to date with upcoming events and legal developments. Members will also be given an opportunity to assist with requests for legal assistance and submissions.

NZALA will be organising a launch for the Wellington members this year, and hope to be able to garner sufficient interest in having an animal law course taught through Victoria Law School. (For those interested, please email me on goyalneha@hotmail.com to register your interest).

For latest news, resources and events please visit our Facebook page at https://www.facebook.com/newzealandanimallawassociation or our website on www.nzala.org. You can also support our work by visiting our Givealittle page https://givealittle.co.nz/org/nzala A

outcomes from the rights and privileges the current regime provides, as well as to highlight areas that necessitate further reform.

An example of a recent concern is the live shipping of thousands of sheep and cattle to Mexico from Timaru for breeding purposes. Given the long journey and density of confinement, fatalities and other welfare issues are likely to be common place. To date there is no procedure in place for monitoring and tracking the livelihood of such animals. This does not sit too well with the legislative acknowledgment that animals are sentient beings and must have the opportunity to display normal patterns of behaviour.

Last November, NZALA was privileged to host Marcelo Rodriguez Ferrere (lecturer of public law and animal law from the university of Otago), who spoke on the amendments to the Animal Welfare Act 1999 at both Victoria university of Wellington and the university of Auckland. This year, American legal scholar Steven Wise, president of the Nonhuman Rights Project, spoke to a large audience in Auckland. Steven has practiced animal protection law for over 38 years. Video recordings of both of these lectures are available on our website.

Currently, NZALA is focussing on regulatory and legislative developments pursuant to the passage of the new Act. NZALA has made submissions on the draft Code of Welfare for the Temporary Housing of Companion Animals and is currently working on a project involving

Concern has been raised about shipping thousands of cattle to Mexico from Timaru for breeding purposes.

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18 YLC AdvocAte

For the first half of 2015, Law for Change Wellington has been focusing on people and organisations using their legal skills to help children and young people. This recently culminated in the event “Working with Youth,” in which a diverse panel of speakers shared their experiences of working with young people both inside and outside the legal profession.

An audience of around 50 law students, as well as some young lawyers, attended to hear united States Juvenile Public Defender Ziyad Hopkins, Youthline volunteer Suki Xiao, Whitirea Community Polytechnic head tutor Makere Derbeyshire, and Wellington family lawyer Shelley Stevenson give their thoughts on how to best serve the needs of children and young people.

Law for Change Wellington co-founder, and departing co-chair, Luke Fitzmaurice introduced the panel with his own reflections on public interest law, noting that Law for Change had been founded out of a sense of purpose and belief that young lawyers and graduates could make the world a better place if they decided to use their skills to make a positive impact. Law for Change had provided a sense of community where he could be challenged, motivated and inspired to do something with his law degree.

The panellists were inspired by a similar sense of altruism. Mr Hopkins, a Boston-based public defender currently in New Zealand on an Ian Axford Scholarship, was drawn to youth advocacy work out of a growing frustration of seeing adults in the criminal justice system with issues that could have been identified and prevented earlier. His own background

Lawyering for Good:Working with Youth

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as an adversarial trial lawyer also meant that he was driven by a desire to help people avoid being “screwed” by the system.

Other panellists came into the field after first practising in other areas of the law. Ms Stevenson had experience in criminal law before being drawn to family law through the enjoyment she got from interacting with children and young people. As a lawyer for child, Ms Stevenson now has responsibility for presenting the views of children in Family Court proceedings, and advocating for the welfare and best interests of the children involved.

To succeed in family law Ms Stevenson believes that, in addition to developing strong litigation skills, it is necessary to learn how to relate to young people. To that end, she recommended that law students and young lawyers volunteer for family law sessions at community law centres and citizens advice bureaus, as well as taking on paid or unpaid work at family law firms.

The need to relate to young people was a common thread amongst all panellists. Ms Xiao, a legally-educated Youthline volunteer, explained that Youthline volunteers did not ‘give advice’ to callers but rather sought to empower young people to solve problems and work through issues on their own. It was important, Ms Xiao said, when working with children and young people to be as non-judgemental as possible, particularly when you had not experienced the same emotions that a caller or client may have been going through.

Lawyering for Good is brought to you by Law for Change Wellington. Our mission is to empower young New Zealanders to use their legal skills in the public interest. In this edition we look at opportunities for working using legal skills to better the lives of

children and young people.

WINTER 2015 19

Empathy was a quality many young people felt lawyers lacked, Ms Derbeyshire said. Prior to attending the panel, she had asked several students their views on lawyers based on past personal experience. While some had a positive impression of lawyers, most had a sense of dislike and distrust. Ms Derbeyshire suggested that it was necessary for lawyers to find a way to relate to young people; for example, sitting next to them rather than standing over them. It was particularly crucial, she said, to talk through court processes as it was often difficult for young people to understand the justice system and what was happening to them.

This view was shared by Mr Hopkins. Having worked with defendants of all ages, he noted that it was harder to make an impact on young people, largely because of the difficulty involved in gaining their trust. Lawyers, by reason of both their age and status, are often viewed differently, and it is necessary to recognise this fact when dealing with young people.

To bridge this gap, it is important to work out what was important to young people, and to envisage your role as doing something with, as opposed to for, them. This is a necessarily collaborative process which involves listening to the needs of young clients as much as anything else.

In that regard, Mr Hopkins was impressed with how the New Zealand youth justice system provided an opportunity for young people to speak and tell their story, with the Rangatahi Courts being a particularly valuable forum for Māori youth.

All panellists found the interactions with children and young people to be the most rewarding aspects of their role. Ms Derbeyshire said her experience had given her an insight into young Māori men caught up in the justice system. Ms Xiao had found her experience with Youthline to be life changing, and something which she felt privileged to be a part of. The feeling of being there for a vulnerable young person had enabled her to learn what was truly important in life, she said.

Keep updated on events hosted by Law for Change Wellington by going to our Facebook page (www.facebook.com/lawforchangewellington) and signing up to our monthly newsletter. We are also currently taking expressions of interest for young lawyers to join our Executive Committee. If you are interested in getting involved send an email to lawforchangewellington@gmail.com. A

The need to relate to young people was a common thread amongst all “Working with Youth” panellists.

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Event Report: YLC Quiz Night

Always a successful event, this year was no exception with 8 themed quiz rounds, a close competition, and plenty of food and drink to keep everyone happy.

Thanks to our MC for the night, Andy Luck, who kept the proceedings on track and the attendees entertained throughout the evening.

A big thank you must go to our sponsors for the event – prizes were donated by Hell’s Pizza, Roxy Cinema, Cuckoo, BodyShop, Lighthouse Cinema, and a first place prize from Crane Bothers.

Held only a few days before Chicago closed its doors for good, this was the last of many great YLC events to be held at the bar and also a chance for the YLC to say goodbye to a venue that has been a fantastic host to us over the last few years.

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On 23 April around 130 young lawyers gathered at Chicago Sports Bar to

take part in the YLC’s hotly anticipated annual Quiz Night.

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22 YLC AdvocAte

Event Report: Bridging the Gap

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In its fourth year, BTG continues to serve as a key connection between law students and young lawyers to help with the transition between study and work. The launch evening was a success where over 90 students and young lawyers met their respective counterparts and networked with others over food and drink. We hope to host one or two more events in 2015 with as many of the BTG group as possible. These events will be focusing on matters that affect both students and lawyers. For more information about the BTG programme email ylc.btg@gmail.com

In early May, the YLC, Victoria Law Students’ Society and IPLS were proud

to launch the IPLS Bridging the Gap mentoring programme for 2015.

WINTER 2015 23

Event Report: Cyber Law Panel

Discussion

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The event was initially overbooked, with overwhelming levels of interest from junior and senior lawyers, policy makers, and many from the media and telecommunications sectors, from Wellington and beyond.

The panellists included Paul Ash (Director National Cyber Policy Office), Joy Liddicoat (Assistant Privacy Commissioner), Dr Nicole Moreham (VuW Associate Professor of Law and authority privacy and media law), Peter Dengate Thrush (barrister and internet law specialist, whom we beamed in via Skype from Washington), Hayden Glass (InternetNZ Council member), and Marcin Betkier (VuW PhD candidate in online privacy).

In spite of weather issues, there was a fantastic turnout, and the audience engaged actively and enthusiastically with the panellists. A clear indicator that issues in cyber, information power and the rule of law are definitely top of mind in Wellington and beyond!

The panellists and audience tackled issues ranging from how advances in cyber- and information-technology have changed information flows, individuals’ ability control their personal data, businesses’ data security and privacy obligations, and the state’s capacity to monitor security and address cyber-crime. We discussed whether privacy laws are adequate or need to be amplified to address imbalances and harms caused by increased information and internet power, and whether we can in the cyber-context draw on traditional principles of the rule of law to achieve this. On the 800th anniversary of the Magna Carta we also acknowledged the importance of the rule of law in the unruly world of cyber, and critically looked at how useful the original principles are to us today. We also discussed the issue of international governance of the internet, and what stage we are at today with states engaging on the issue of regulating and combating cross-border cyber-crime and abuse of internet power.

We have had some outstanding feedback on the discussion from lawyers, academics, Law Society Council members, internet and communications specialists, policy makers, and NZ Inc:

“I really enjoyed the panel discussion and it was great to see how relevant the content is to a rapidly changing world of technology. As lawyers I think it is in our nature to honour traditions and look to precedent, but this approach isn’t necessarily conducive to keeping up with the times. It’s important to have panel discussions like these which assess the law and its relevance in the context of everyday life.” “Congratulations on a very well organised, informative and fun event. Very well done.”“It’s lovely to come across someone similarly interested in the importance of Magna Carta and all things rule of law!” “My compliments on an excellent event tonight. Well done!” “I thought it was an outstanding event, packed full of valuable insights” “a top job at facilitating an insightful discussion.”“This was a fascinating session involving a panel of experts and it was a very good idea to have New Zealand’s foremost expert, Peter Dengate Thrush, participate online.”

We look forward to continuing these conversations on other occasions in the future.

The Young Lawyers’ Committee and Russell McVeagh held a very

successful and well attended panel discussion on Information, Power and

the Rule of Law on 14 May.

24 YLC AdvocAte

Event Report: GLN and YLC Evening

with the Principal Law Officers

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The Government Legal Network and YLC jointly hosted an Evening with the Principal Law Officers on 7 May 2015. It was an excellent opportunity for young lawyers interested in the public sector to come together, mingle with each other and meet the Attorney-General and Solicitor-General. Both the Attorney-General and Solicitor-General gave excellent speeches and plunged, willingly, into the melee of enthusiastic young lawyers from both private and public sectors.

Thanks to the Attorney-General and Solicitor-General for speaking at the event and to the Government Legal Network for all their assistance in organising the event.

We look forward to seeing you at other GLN/YLC events throughout 2015!

Young lawyers working in and around the public sector attended the first

collaborative Government Legal Network and YLC event of 2015!

WINTER 2015 25

Event Report: Mooting Final

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Josh and Alice saw off 13 other teams in a battle over conflict of laws and whether the New Zealand Government could seize a private vessel. In the Final before Kos and Brown JJ of the High Court, they faced stiff competition from Runners-up Lauren Brazier and Emma Smith.

The organisers wish to thank the New Zealand Law Foundation, the Bar Association and the Law Society for their support.

This year’s Wellington round of the New Zealand Law Foundation National Young

Lawyers’ Mooting Competition has come to a conclusion with Josh Pemberton and

Alice Osman taking out the title.

26 YLC AdvocAte

www.younglawyers.co.nz