48.9. Localised use of trade mark

Section 102 provides for circumstances where the challenged trade mark is substantially identical or deceptively similar to a registered trade mark owned by the applicant for removal, and:

• an application to remove the trade mark is made on grounds
  • that it was not used in Australia, or
  • was not used in good faith in Australia,
  • for three year period ending one month before the date of the application,
• and where the applicant for removal and the opponent have both
  • established use of their respective registered trade marks, and
  • the trade marks are used in different localities, and
  • the applicant’s trade mark is, or will be, subject to geographic limitations or limited to particular export markets.

Given these conditions, if non-use has been established in a specified place in Australia or in a specified export market, the court, or the Registrar, may decline to remove the trade mark from the Register. Conditions or limitations, however, may be applied to the registration so that the geographic extents of the registrations become mutually exclusive.