Commonwealth Numbered Acts

TRADE MARKS ACT 1994 No. 156 of 1994 - SECT 44

44.(1) Subject to subsections (3) and (4), an application for the
registration of a trade mark in respect of goods ("applicant's trade mark")
must be rejected if:

   (a)  the applicant's trade mark is substantially identical with, or
        deceptively similar to:

        (i)    a trade mark registered by another person; or

        (ii)   a trade mark in respect of which an application for
               registration has been made by another person; that relates to:

        (iii)  goods that are the same as, or of the same description as
that of, the goods ("applicant's goods") to which the applicant's trade mark
relates; or

        (iv)   services that are closely related to the applicant's goods; and

   (b)  the priority date for the applicant's trade mark is not earlier than
        the priority date for the other trade mark.
Note: For "priority date" see subsection (5).

(2) Subject to subsections (3) and (4), an application for the registration
of a trade mark in respect of services ("applicant's trade mark") must be
rejected if:

   (a)  it is substantially identical with, or deceptively similar to:

        (i)    a trade mark registered by another person; or

        (ii)   a trade mark in respect of which an application for
               registration has been made by another person; that relates to:

        (iii)  services that are the same as, or are of the same
description as that of, the services ("applicant's services") to which the
applicant's trade mark relates; or

        (iv)   goods that are closely related to the applicant's services; and

   (b)  the priority date for the applicant's trade mark is not earlier than
        the priority date for the other trade mark.
Note: For "priority date" see subsection (5).

(3) If the Registrar in either case is satisfied:

   (a)  that there has been an honest concurrent use of the 2 trade marks; or

   (b)  that, because of the other circumstances, it is proper to do so; the
        Registrar may accept the application for the registration of the
        applicant's trade mark subject to any condition or limitation that the
        Registrar thinks fit to impose. If the applicant's trade mark has been
        used only in a particular area, the limitations may include that the
        use of the trade mark is to be restricted to that particular area.

(4) If the Registrar in either case is satisfied:

   (a)  that the applicant, or a predecessor in title of the applicant, has
        continuously used the applicant's trade mark for a period before the
        date of registration of the other trade mark; and

   (b)  that the applicant's trade mark was never abandoned; the Registrar may
        not reject the application because of the existence of the other
        trade mark.

(5) The "priority date" for a trade mark is:

   (a)  if the trade mark is registered-the date of registration of the trade
        mark; or

   (b)  if the registration of the trade mark is being sought-the day that
        would be the date of the registration of the trade mark if it were
        registered.