32A. Annex 6 - How to Supply Evidence of Use of a Trade Mark for Plants and/or Plant Material

Date Published 20 Apr 2022

Note: This annex relates to section 41 only. For information relating to evidence requirements for conflicting trade marks, refer to Part 28 of this Manual.

HOW TO SUPPLY EVIDENCE OF USE OF A TRADE MARK FOR PLANTS AND/OR PLANT MATERIAL

Under section 41 of the Trade Marks Act 1995

What is “evidence of use”?

In my report I have explained some problems with your trade mark. You might be able to overcome these problems if you supply evidence of use under section 41.

“Evidence of use” is usually information about:

Use already being made of your trade mark in Australia or overseas: The information must show that your trade mark has become, or is likely to become, identified as a trade source for your goods and not simply an alternate name for the goods themselves.

In some cases it is information about:

Documented preparations to begin use of your trade mark in Australia. The information must show that your trade mark has the potential to become identified as a trade source for your goods. This will be indicated by specific, documented plans which you have made to use the trade mark to sell your goods.

PLEASE NOTE: In connection with plant material, “trade name” is not synonymous with “trade mark”. This is because a trade name is often intended to be used with only a single plant variety and can become no more than an alternative description for the goods.

Evidence should show how the trade mark appears in connection with relevant genus, species and variety name information.

How must you supply the evidence?

Evidence must be supplied as a declaration and should be submitted in electronic format via the online services page. Please follow the guidelines on file types and file sizes when submitting via the online services page. Using the online services page is both secure and convenient.

The declaration must be from:

you, if you are the applicant, OR
a principal officer or other authorised employee of the company (e.g. a director) if the applicant is a company, OR
someone you have authorised to make the declaration on your behalf (e.g. a lawyer or trade mark attorney).

The declaration must:

be headed with the title of the matter for which the declaration is made; AND
be expressed in the first person; AND
state the name and address of the person making the declaration; AND
if the declaration is made on behalf of a company, state the name and address of the company and the position in the company of the person making the declaration; AND
state the date on which the declaration is made; AND
state the place at which the declaration is made; AND
be divided into consecutively numbered paragraphs, confined to one subject where practicable; AND
state that the person making the declaration believes the declaration to be true and correct; AND
be signed by the person making the declaration.

The declaration form available via the online services page incorporates the above points.

PLEASE NOTE: Providing clear digital images of any objects bearing the trade mark will be as effective as providing the objects themselves.

What information must the evidence contain?	The declaration must contain: The name of the person or organisation using or intending to use the trade mark: you or your company, OR someone authorised to use the trade mark, OR a person or company from whom you acquired the trade mark (a predecessor in title). For evidence of actual use the declaration should include: A brief history of the trade mark including: The date when the trade mark was first used to sell goods (please give the year and, if possible, the month). The area/s where the trade mark has been used (please give States or regions in Australia, and/or countries overseas). The goods sold using the trade mark. Examples of how the trade mark has been used to sell those goods (please refer to and attach digital images of packaging and/or advertising and/or promotional materials using the online services page). The annual figures in Australian dollars spent on advertising and promoting the trade mark. The annual turnover figures in Australian dollars for the goods sold using the trade mark. These figures must cover only the goods in your application. Any other information or materials which will help show how the trade mark has been used (please refer to and attach digital images of these materials using the online services page). For evidence of intended use, the declaration should include: Comprehensive details of business plans and/or other documents demonstrating a definite intention to use the trade mark (please refer to and attach copies of these documents). Details of the goods or services this planned use relates to. Figures in Australian dollars for any costs already incurred in preparing to use the trade mark. Any other information or materials which will help show how the trade mark is intended to be used (please refer to and attach copies of these materials using the online services page).
Can you prepare the evidence yourself?	You may prepare and supply evidence of use yourself or a trade mark attorney would be able to assist you.
Will the information you supply be treated as confidential?	IP Australia will accept your declaration in confidence. IP Australia will not accept an accompanying letter in confidence. Please do not put any information which you consider to be confidential into an accompanying letter.
Will the information you supply be given to anyone else?	Other people may request access to information you have provided. Please take into account that: Letters become available for public inspection. Declarations may be available for public inspection. Copies of declarations may also be requested under the Freedom of Information Act. If this occurs, IP Australia may seek your comments before any release of your declaration.