TRADE MARKS ACT 1994 No. 156 of 1994 - SECT 92
Application for removal of trade mark from Register etc.
TRADE MARKS ACT 1994 No. 156 of 1994 - SECT 92
Application for removal of trade mark from Register etc.
92.(1) A person aggrieved by the fact that:
(a) a trade mark is or may be registered; or
(b) a trade mark removed from the Register for non-renewal of its
registration may be restored to the Register; may, subject to
subsection (3), apply to the Registrar for the trade mark to be
removed from, or not to be restored to, the Register.
(2) The application:
(a) must be in accordance with the regulations; and
(b) may be made in respect of any or all of the goods or services in
respect of which the trade mark may be, is, or was, registered.
(3) An application may not be made to the Registrar under subsection (1) if an
action concerning the trade mark is pending in a prescribed court, but the
person aggrieved may apply to the court for an order directing the Registrar
to remove the trade mark from the Register or not to restore it to the
Register.
(4) An application under subsection (1) or (3) ("non-use application") may be
made on either or both of the following grounds, and on no other grounds:
(a) that, on the day on which the application for the registration of the
trade mark was filed, the applicant for registration had no intention
in good faith:
(i) to use the trade mark in Australia; or
(ii) to authorise the use of the trade mark in Australia; or
(iii) to assign the trade mark to a body corporate for use by the
body corporate in Australia; in relation to the goods or
services to which the non-use application relates and that the
registered owner has not used the trade mark in good faith in
Australia in relation to those goods or services at any time
before the period of one month ending on the day on which the
non-use application is filed;
(b) that the trade mark has remained registered, or (if it were restored
to the Register) would have remained registered, for a continuous
period of 3 years ending one month before the day on which the
non-use application is filed, and, at no time during that period, the
person who was then the registered owner used the trade mark in good
faith in Australia in relation to the goods or services to which the
application relates.