10. Cancellation of defensive trade marks

Date Published

Although Part 9 (Removal of Trade Mark from Register for Non-use) is not directly applicable to defensive trade marks, it may indirectly be used to attack the defensive registration. An action to cancel or remove the primary trade mark registration upon which the defensive registration is based may be brought, thus enabling the provisions of sections 88 and 189 of the Act to be invoked for the purpose of cancelling the defensive registration.  However, section 189 would appear not to allow the Registrar to cancel a defensive registration if a registration for the same trade mark exists, whether or not that trade mark was the one on which the defensive registration was based.