AI Archives | Edmonds Judd

Business briefs

September 24, 2026

Business Law, Consumer Credit, Health and Safety, Technology Law

Health and Safety at Work Amendment Act 2026

Since we published the Winter 2026 edition of Commercial eSpeaking, the Health and Safety at Work Amendment Act 2026 has received Royal Assent and will come into force on 1 April 2027.

The Act introduces ‘critical risk’ as a defined concept – being risks associated with hazards under Schedule 1A or risks likely to result in death, notifiable injury, illness, incident or occupational disease, and requires businesses to prioritise managing these risks above others.

If you employ fewer than 20 people, your health and safety duties will narrow specifically to critical risks, rather than covering every possible workplace risk. You’ll still need to meet baseline obligations, including providing adequate employee facilities (for example: toilets, drinking water and hand-washing facilities) but this change is intended to reduce the compliance burden for smaller businesses.

The Act also clarifies the duty owed by a Person Conducting a Business or Undertaking (PCBU) where its workplace includes outdoor space used for recreation. In specified circumstances, the PCBU will not owe the usual section 37 duty to people entering and using that space for recreational purposes, unless:

The recreational use is part of a PCBU’s business or undertaking, or
Other work connected to a business or undertaking conducted by the PCBU is being carried out at the time in the outdoor space near where the entry and use are taking place.

If your business already complies with industry-specific legislation, the Act confirms this will satisfy your obligations under the Act too, without needing to separately comply with the Act.

Businesses should begin reviewing their health and safety processes and policies now, ahead of the 1 April 2027 commencement date.

AI in the workplace

AI tools are becoming a standard part of many workplaces, used for everything from drafting documents to customer service and research. Used safely, AI may increase efficiency, but it is important to manage the associated risks and put the right safeguards in place.

Some key risks in practice include, without limitation:

Confidentiality: Trade secrets or confidential information entered into an AI tool could be disclosed, retained or used to train the tool
Privacy: Entering personal information into an AI tool may amount to a disclosure under the Privacy Act 2020
Intellectual property: AI-generated content isn’t automatically free of copyright issues, and outputs may infringe someone else’s protected work, and
Human oversight and transparency: AI output should be reviewed before it’s relied on, to guard against errors, bias or hallucinated content.

Some practical controls may include, without limitation:

Paid subscriptions: Paid subscriptions to AI tools generally offer stronger safeguards than free versions, but your business will need to check the specific terms that apply
Data audit: To take stock of what data the business holds, who can access it and whether use of an AI tool would give people wider access than they’re meant to have, and
AI policy: To set clear expectations around which AI tools are approved for use, what types of information staff can and cannot put into them and the process for reviewing and signing off on AI-generated output before it’s relied on.

There is more guidance in the Ministry of Business, Innovation and Employment’s publication Responsible AI Guidance for Businesses. Click here to read it.

AI in the boardroom

A recent Federal Court of Australia decision has offered a timely warning on AI’s growing role in the boardroom.^[1] The court also commented on AI use, warning that AI-generated summaries are not a substitute for directors actually reading and engaging with board materials themselves.

While the decision is not binding in New Zealand, directors here are subject to their own duty of care under the Companies Act 1993 that requires directors to exercise the care, diligence and skill of a reasonable director.

This duty applies regardless of whether AI is involved in a director’s decision-making process. If a director relies heavily on an AI-generated summary without checking it against the underlying material, they may struggle to demonstrate that they exercised the care, diligence and skill required by the Act.

As AI becomes more prominent in board processes and decision-making, this is a useful reminder that directors must properly engage with information and exercise independent judgement rather than relying solely on AI-generated material.

Reporting, liability and disclosure changes for consumer credit providers

On 1 July 2026, the Financial Markets Authority (FMA) took over responsibility for regulating the Credit Contracts and Consumer Finance Act 2003 (CCCFA) from the Commerce Commission. As part of this change, consumer credit providers including banks, credit unions and other lenders are now licensed under the Financial Markets Conduct Act 2013 (FMCA).

Reporting

Section 412 of the FMCA requires licensees to inform the FMA as soon as they believe they’ve breached, or are likely to breach, a licence obligation or if there has been, or is likely to be, a material change in circumstances, or where certain particulars are false or misleading.

While other types of FMCA licensees have been subject to this for years, this is new for consumer credit providers who have not had to comply with this until now.

The obligation to report arises as soon as the licensee believes a breach may have happened or may be about to happen. Getting this timing wrong, or failing to report at all, can result in a penalty of up to $600,000.

Director and senior manager liability

Directors and senior managers of consumer credit providers no longer have a personal due diligence obligation under the CCCFA. Personal liability arises instead under the existing FMCA regime and requires involvement in a breach.

Disclosure

Under the CCCFA, courts may order a debtor not liable for borrowing costs where appropriate disclosures have not been made by consumer credit providers. This is triggered by way of application from a debtor or the FMA, where courts may consider factors including, without limitation, the provider’s compliance programmes and prejudice caused to the debtor.

For more detailed information about these changes, click here.

^[1] ASIC v Bekier (Liability Judgment) [2026] FCA 196.

DISCLAIMER: All the information published in Commercial eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Commercial eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Content Copyright © NZ LAW Limited, 2026. Editor: Adrienne Olsen. E-mail: [email protected] Ph: 029 286 3650

What’s in a name?

September 24, 2026

Business Law, Intellectual Property, Legal Technology, Trademarks & Branding

Brand protection in the age of AI

An apple with a bite taken out. A golden ‘M.’ ‘Just Do It.’ The power of a punchy slogan or well-designed logo to immediately identify a business is immense, tapping into a deep-seated part of our psyche as consumers. A good brand inspires trust, implies integrity and creates emotional connection. It’s also a valuable piece of intellectual property.

A good brand, however, also costs money. Marketing and advertising, graphic design and social media experts: it all adds up, particularly for small businesses where every dollar counts. That is why many businesses are turning to the latest tech toy – generative AI. ChatGPT and other AI tools can create professional-looking branding in seconds for a tiny fraction of the market cost.

Under OpenAI’s terms of use, you own any output generated by ChatGPT or its other applications based on prompts or information you input,^[1] meaning you potentially own a piece of intellectual property which can contribute to the value of your business. Logos or slogans created by AI might even qualify to be registered as trade marks.

So what’s the risk?

Trade marks have been used and relied upon for hundreds of years by traders seeking to distinguish the goods or services they offer from those of other businesses. They attract a goodwill value to a business as a recognisable symbol of the products on sale, as well as providing an enforceable means of protection against less scrupulous traders who might seek to sell the same or similar products under a pretence of connection.

Under the Trade Marks Act 2002, to be eligible for registration, a trade mark must:

Have a distinctive character.^[2] It cannot just be a description of goods or services, and
Not be similar to an existing trade mark for similar goods or services, or otherwise be likely to cause confusion.^[3]

Even without registration, a business may have protection under the common law tort of passing off, as well as under provisions of the Fair Trading Act 1986 that prohibit misleading or deceptive conduct and certain conduct concerning trade marks.

OpenAI gives no warranty or representation, however, that the brand it creates will meet trade mark eligibility criteria, or be sufficiently distinctive to you to justify a passing off claim. In fact, its Terms of Use expressly acknowledge that due to the nature of the services provided, outputs may not be unique, and ‘other users may receive similar output.’ This means there is no guarantee that your AI-generated brand will not be the same as or similar enough to someone else’s mark to cause confusion, limiting its value as a trade mark in terms of goodwill and reducing its enforceability against potential fraudsters.

Using generative AI to create a brand might also leave you open to trade mark infringement or passing off claims by existing trade mark owners. OpenAI’s terms expressly state that a user is responsible for their own output, including that it does not violate any applicable laws.

ChatGPT does not run any clearance checks to ensure that the branding that it generates for a user does not use or infringe the intellectual property of any other party.

Generative AI models are trained using large datasets, which may include material created by third parties. The legal implications of that training, and of particular AI-generated outputs, are still developing. Businesses should therefore not assume that AI-generated material is free from third-party intellectual property risks.

No legislative guidance here

New Zealand does not currently have an AI-specific legislative regime. The current government has indicated that it will take a ‘light touch’ approach to regulation and courts will likely follow guidance from overseas. Existing laws, including privacy, consumer protection and intellectual property laws, continue to apply to AI use.

For now, the onus is on you to ensure that your AI-generated branding is sufficiently distinctive and original – not only to provide the goodwill value of a trade mark, but also to protect your business against passing off claims. MBIE has published voluntary guidance for businesses on the responsible use and development of AI. To read this, click here.

To ensure protection against passing off and defence against third party infringement claims, getting our advice will be your safest bet.

^[1] https://openai.com/en-GB/policies/terms-of-use/

^[2] Trade Marks Act 2002, s18.

^[3] s17(a).

Generative AI and copyright

December 11, 2023

Amanda Leahy

Commercial, First Job, Latest news, Your Own Business

Are you taking the right precautions?

Many businesses have been using artificial intelligence (AI) for a long time to gather insights into their data and make strategic decisions. Recent generative AI improvements, however, have brought the power of AI into the public’s hands like never before. As a certain spider^[1] once said: With great power comes great responsibility.

Generative AI technologies can now be used to create almost any type of content you can imagine; everything from a poem about pineapples to music in the style of Mozart and even three-dimensional models of motorbikes. However, the legal and human issues these technologies create are far less inspiring.

At its core, generative AI models are trained on large datasets of predominantly human-generated works to generate new works, that are ‘inspired’ from works within the training dataset. This approach raises several important legal questions, including:

Are companies allowed to train an AI model on content which they do not own? This is particularly significant considering much of the content is not in the public domain and is, arguably, covered by copyright
Once a model has been trained, who owns the content the model produces, and can it be used without infringing the intellectual property (IP) of others, and
Can you own and protect the output from an AI model?

There are also the ethical and fairness issues of using the creative works of others without compensation.

Many of these topics are currently being litigated in courts around the world, and while it would take a lengthy article to cover each issue in detail here, we discuss three key issues below.

IP laws vary from country to country
While there are international agreements on copyright provided under the Berne Convention, there are still significant differences in copyright law in different countries. This is particularly important when it comes to issues such as relying on ‘fair use’ as a defence to copyright infringement.

Copyright is also only a small piece of the puzzle. Depending on how you use AI, you may need to also consider local and international laws covering moral rights, consumer protection such as the Fair Trading Act 1986 and the tort of passing off, breach of contract, violations of the American statute Digital Millennium Copyright Act 1998 and unfair competition laws – to name just a few.

AI-generated content can still infringe the rights of others
Even if an AI is tasked with creating new content, this does not guarantee that content can be used without infringing the rights of others. Most AI models have been trained on datasets that include works protected by copyright, patents, trademarks and registered designs. Therefore, before being used, the generated outputs should be reviewed to assess potential infringement issues.

The use of a generative AI may prevent you from asserting copyright in the generated works
Most guidance from overseas markets at this stage is that to be copyright-eligible, the creative work requires a human author. Prompting an AI to generate content is unlikely to meet the human authorship standard. The extent to which you can claim copyright on an AI-generated work is likely to be limited to a detailed analysis of exactly what the human inputs were when compared with the computer-generated outputs.

What can you do to reduce risk?

Despite these above issues, you can take practical steps to help reduce your risk in using AI-generated content. These include:

Searching to determine how different your AI-generated content is from existing, potentially protected works
Ensuring that key issues such as privacy and confidentiality are not breached by your use of the AI
Fact checking the outputs of the AI
Ethical use of the AI, including not using the AI as a tool to copy or mimic the art style of another person or company, and
Keeping detailed records of what the generative AI was used for, including details of prompts, intermediate outputs, manual edits and so on.

Since generative AI technologies can be used in a seemingly endless number of different applications, your risk exposure will depend on exactly what you are using these technologies for and what precautions you can take to reduce your risk.

^[1] Spider-Man said this, but it has also been attributed to Winston Churchill.

DISCLAIMER: All the information published in Fineprint is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Fineprint may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022. Editor: Adrienne Olsen. E-mail: [email protected]. Ph: 029 286 3650

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