Part 3.1. Who may apply?

Trade Marks Act 1995

Trade Mark Regulations 1995

A person who claims to be the owner of the trade mark (paragraph 27(1)(a)) may apply. 

The person who applies must, in relation to the goods and/or services in respect of which registration is sought (s27(1)(b)), as well as claiming to be the owner, also:

• use or intend to use the trade mark, or
• authorise or intend to authorise another person to use the trade mark, or
• intend to assign it to a body corporate that is about to be formed with a view that the body corporate will use the trade mark,

1.1 “Person” includes:

• an individual
• a company
• an incorporated or unincorporated body of persons
• a political body.

If the trade mark is owned by a corporation, the application should be made in the corporation’s name and not in the name of the directors or shareholders. A relationship to a trust can be recorded if the legal name of the trustee is provided. For example, “[Trustee’s legal name] as trustee for [trust name]”.”

The applicant details must have a name and address to meet minimum filing requirements. However, if the applicant appears not to have ‘legal personality’ this will be queried in examination.  The application will not be accepted until the ownership details meet the requirements of section 27(2)(c) (see Part 10.1 for an explanation of these requirements).

​​​​​​​A business name or trading name, trusts, Australian partnerships, or other unincorporated entities are not acceptable as the name of an applicant as these entities or names do not have legal personality.  If the application specified an applicant without legal personality, an amendment may be made to change that applicant to a ‘person’ with legal personality (s 65(8)).  

1.2 An application can be assigned prior to registration (s106), therefore the name of the applicant may change after filing.

• Part 43 Assignment and Transmission - 2. Timing for assignment

“Applicant” is defined as the person in whose name the application is, for the time being, proceeding.

1.3 There is no investigation of the applicant's claim to ownership, unless on the face of it, the claim appears to be defective.  If the matter of ownership is raised by a third party prior to acceptance of the application, that party is advised that the registration of the trade mark is open to opposition should the application be accepted.

1.4 No statement of user is required as it was under the Trade Marks Act 1955.  The act of applying will generally be taken to indicate use or intended use.

1.5 The application will be taken as meeting the requirements of paragraph 27(1)(b) unless the specification of goods and/or services is unrealistically broad and so calls the matter of use or intended use into question.  If this occurs the Registrar may require a declaration (subreg 4.8(3)), at the examination stage, to confirm the intended use of the trade mark.

• Part 10 Details of Formality Requirements - 5. Specification of goods and/or services