35.12. Rectification of the Register and variation of rules by order of the court

The grounds for rectification set out in Division 2 of Part 8 of the Act apply to certification trade marks except that section 88(2)(a) is modified as per section 181(1) to include reference to section 171.

Section 181(2) sets out additional grounds on which a certification trade mark may be cancelled or an entry in the Register may be removed or amended by order of a prescribed court, on the application of a person aggrieved.  These grounds relate to the registered owner's competency to certify goods or services, the rules governing the use of the certification trade mark, and failure to comply with the rules.  Under section 182 a prescribed court may also make orders for varying the rules, on application of a person aggrieved.

12.1 A person aggrieved may apply to the court requesting cancellation of a certification trade mark or the removal of or amendment to an entry in the Register relating to that trade mark on the grounds that:

• the registered owner or an approved certifier is no longer competent to certify any of the goods and/or services in respect of which the trade mark is registered; or
• the rules governing the use of the certification trade mark are detrimental to the public; or
• the registered owner or an approved user has failed to comply with a provision of the rules governing the use of the certification trade mark (section 181(2)).

12.2 The Registrar must comply with any order made by a prescribed court (section 181(6)).

12.3 The rules governing the use of a certification trade mark may, on application of a person aggrieved, be varied by a prescribed court (section 182(1)).

12.4 If the court orders that the rules are to be varied, the registered owner of the certification trade mark must give to the Registrar a true copy, certified by the Commission, of the rules as varied (section 182(5)).