3.1. Who may apply?

Date Published

A person who claims to be the owner of the trade mark (paragraph 27(1)(a)) may apply.  Under the Trade Marks Act 1995 the definition of a person includes a body of persons, whether incorporated or not.

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.

A business name or trading name is not acceptable as the name of an applicant.  The owner(s) of the business registration would be the applicant.  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 trust is to apply in the name of the trustees.

Any of these entities may, if provided as applicant details at time of filing, 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).


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

“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.

Amended Reasons

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