Commonwealth Consolidated Acts

TRADE MARKS ACT 1995 - SECT 6

                   In this Act, unless the contrary intention appears:

"applicant" , in relation to an application, means the person in whose name the application is for the time being proceeding.

"applied to and applied in relation to " have the respective meanings given in section 9.

"approved form " means a form approved by the Registrar for the purposes of the provision in which the expression appears.

"assignment" , in relation to a trade mark, means an assignment by act of the parties concerned.

"Australia " includes the following external Territories:

                     (a)  Christmas Island;

                     (b)  Cocos (Keeling) Islands;

                     (c)  Norfolk Island.

"Australian continental shelf " has the same meaning as in the Seas and Submerged Lands Act 1973 .

"authorised use" , in relation to a trade mark, has the meaning given by section 8.

"authorised user" , in relation to a trade mark, has the meaning given by section 8.

"certification trade mark " has the meaning given by section 169.

"collective trade mark " has the meaning given by section 162.

"Commission " means the Australian Competition and Consumer Commission established under the Trade Practices Act 1974 .

"Convention country " means a country declared (by regulations made under section 225) to be a Convention country for the purposes of this Act.

"Customs CEO" means the Chief Executive Officer of Customs.

"date of registration" means:

                     (a)  in relation to the registration of a trade mark in respect of particular goods or services other than a trade mark to which paragraph (b) applies--the day from which the registration of the trade mark in respect of those goods or services is taken to have had effect under subsection 72(1) or (2); or

                     (b)  in relation to a trade mark to which subsection 239A(3) applies--the day referred to in subsection 239A(4).

"deceptively similar " has the meaning given by section 10.

"defensive trade mark " has the meaning given by section 185.

"Deputy Registrar " means a Deputy Registrar of Trade Marks.

"designated owner" , in relation to goods imported into Australia, means:

                     (a)  the person identified as the owner of the goods on the entry made in relation to the goods under section 68 of the Customs Act 1901 ; or

                     (b)  if no such entry exists--the person determined to be the owner of the goods under section 133A of this Act.

"divisional application " has the meaning given by section 45.

"employee" means a person, other than the Registrar or a Deputy Registrar, who:

                     (a)  is a person engaged under the Public Service Act 1999 and is employed in the Trade Marks Office; or

                     (b)  is not such a person but performs services, in the Trade Marks Office, for or on behalf of the Commonwealth.

"examine" , in relation to an application for the registration of a trade mark, means to carry out an examination under section 31 in relation to the application.

"existing registered mark " means a mark that was registered in Part A, B, C or D of the old register before 1 January 1996 and whose registration under the repealed Act was due to expire after that day.

"Federal Court " means the Federal Court of Australia.

"file" means to file at the Trade Marks Office.

Note:          See section 213.

"filing date " means:

                     (a)  in relation to an application for the registration of a trade mark other than an application referred to in another paragraph of this definition--the day on which the application is filed; or

                     (b)  in relation to a divisional application for the registration of a trade mark--the filing date of the application that is the parent application (within the meaning of section 45) in relation to the divisional application; or

                     (c)  in relation to an application to which section 241 applies--the day referred to in subsection 241(5); or

                     (d)  in relation to an application made under section 243--the day referred to in subsection 243(6); or

                     (e)  in relation to a prescribed application--the day determined in the prescribed way.

"geographical indication" , in relation to goods originating in a particular country or in a region or locality of that country, means a sign recognised in that country as a sign indicating that the goods:

                     (a)  originated in that country, region or locality; and

                     (b)  have a quality, reputation or other characteristic attributable to their geographical origin.

"goods of a person " means goods dealt with or provided in the course of trade by the person.

"lawyer " means a barrister or solicitor of the High Court or of the Supreme Court of a State or Territory.

"limitations " means limitations of the exclusive right to use a trade mark given by the registration of the trade mark, including limitations of that right as to:

                     (a)  mode of use; or

                     (b)  use within a territorial area within Australia; or

                     (c)  use in relation to goods or services to be exported.

"month" : the end of a period with a length expressed in months is worked out under section 6A.

"notified trade mark" means a trade mark in respect of which a notice under section 132 is in force.

"objector" , in relation to seized goods, means any person who has given under section 132 a notice in respect of those goods that is in force.

"Official Journal " means the Official Journal of Trade Marks mentioned in section 226.

"old register " means the Register of Trade Marks kept under the repealed Act.

"opponent" , in relation to the registration of a trade mark, means:

                     (a)  the person who has filed (under section 52) a notice of opposition to the registration of the trade mark; or

                     (b)  if section 53 applies--a person in whose name the notice of opposition is taken to have been filed.

"originate" , in relation to wine, has the meaning given by section 15.

"patent attorney " means a person registered as a patent attorney under the Patents Act 1990 .

"pending" , in relation to an application for the registration of a trade mark, has the meaning given by section 11.

"person " includes a body of persons, whether incorporated or not.

"predecessor in title" , in relation to a person who claims to be the owner of a trade mark, means:

                     (a)  if the trade mark was assigned or transmitted to one or more than one other person before it was assigned or transmitted to the first‑mentioned person--that other person or any one of those other persons; or

                     (b)  if paragraph (a) does not apply--the person who assigned the trade mark, or from whom the trade mark was transmitted, to the first‑mentioned person.

Note:          In the case of a trade mark that is neither registered nor the subject of an application for registration, the trade mark may be assigned or transmitted in Australia only in conjunction with the goodwill of a business concerned with the trade mark. If the trade mark is registered or the subject of an application for registration, section 106 provides that the trade mark may be assigned or transmitted with or without the goodwill of the business.

"prescribed court " means a court that is under section 190 a prescribed court for the purposes of this Act.

"priority date " has the meaning given by section 12.

"Register " means the Register of Trade Marks kept under section 207.

"registered owner" , in relation to a registered trade mark, means the person in whose name the trade mark is registered.

"registered trade mark " means a trade mark whose particulars are entered in the Register under this Act.

Note:          In addition, the regulations may provide for the effect of a protected international trade mark: see Part 17A.

"registered trade marks attorney" means a person registered as a trade marks attorney under this Act.

"Registrar " means the Registrar of Trade Marks.

Note:          Sections 201, 202, 203, 204 and 206 deal with the office, powers and functions of the Registrar of Trade Marks.

"registration number" , in relation to a registered trade mark, means the number given to it under subsection 68(2).

"remove from the Register" , in relation to a trade mark, has the meaning given by section 13.

"repealed Act " has the meaning given by section 16.

"seized goods " means goods seized under section 133.

"services of a person " means services dealt with or provided in the course of trade by the person.

"sign " includes the following or any combination of the following, namely, any letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent.

"similar goods " has the meaning given by subsection 14(1).

"similar services " has the meaning given by subsection 14(2).

"this Act " includes the regulations.

"trade mark " has the meaning given by section 17.

"transmission " means:

                     (a)  transmission by operation of law; or

                     (b)  devolution on the personal representative of a deceased person; or

                     (c)  any other kind of transfer except assignment.

"use of a trade mark " has a meaning affected by subsections 7(1), (2) and (3).

"use of a trade mark in relation to goods " has the meaning given by subsection 7(4).

"use of a trade mark in relation to services " has the meaning given by subsection 7(5).

"word " includes an abbreviation of a word.

"working day" means a day that is not:

                     (a)  a Saturday; or

                     (b)  a Sunday; or

                     (c)  a public holiday in the Australian Capital Territory.