48.1. What if a trade mark is not used?

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Inherent in the definition of a trade mark is the requirement, per section 17, that the owner intends, and does, use the trade mark to distinguish its goods or services from goods or services dealt with or provided by others. Section 92 provides for a person to apply for a trade mark to be removed from the Register if the trade mark has not been used. The non-use application can be opposed.  The opponent (usually the owner) then bears the onus of either demonstrating the necessary use or satisfying the Registrar that circumstances had prevented use and these thereby justified allowing registration of the trade mark to continue (section 100).

A non-use application may also be made if the trade mark is a protected international trade mark (reg 17A.48C), however it is termed an application for cessation of protection rather than an application for removal.  The grounds for such an application are the same as those for removal, namely the grounds contained in subsection 92(4) (See reg 17A.48D).

If there is no opposition to a properly filed non-use application, the trade mark will be removed from the Register (section 96).

It should be noted that, due to their specialised functions under the legislation, certification trade marks and defensive trade marks are excluded from the provisions of Part 9 (see sections 170 and 186).

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