44.6. Cancelling the record of a claim

6.1

A request to cancel a claim must be in writing and signed by at least the claimant.

6.2

Under sections 115 and 119, and reg 11.3, the request may be made by:

• the person claiming the right or interest in the trade mark,
• the person claiming the right or interest in the trade mark together with the owner of the trade mark,
• either of those parties with the written consent of the other, or
• the owner of the trade mark alone (see 6.4 below).

6.3

If the request for cancellation is not in order, and therefore cannot be processed, the person(s) who made the request will be advised by way of a letter.

6.4

If the request for cancellation has been made by the owner of the trade mark alone, the cancellation will be set to pending in the system awaiting approval.. A standard notice is issued to the person who has been recorded as having a claimed interest in the trade mark advising them that they have a period of two months within which to obtain a court order preventing the cancellation of the record of the claim, should they wish to do so (subreg 11.3(4)).

A letter is also sent to the Address for Service of the trade mark advising their request has been delayed for a period of two months to allow the person whose claim to interest is recorded on the Register to obtain a court order if they do not agree to the cancellation of their claim.

If the claimant advises they have no objection to the cancellation (subreg 11.1(5)), the two month approval period can be overridden and the cancellation of the claimed interest can be processed and approved.

If after two months the request has not been withdrawn or a prescribed court order has not been received, the Registrar will cancel particulars of the claim in accordance with the request as soon as practicable after the end of a period from the date of the notice  (subreg 11.3(4)(b)).

6.5

If a court order is received the pending cancellation set up in the system of the claimed interest details will be deleted and the cancellation will not be processed.  Both the owner and claimant will be advised that the cancellation cannot be processed.

If the request for cancellation is in order the cancellation should be processed and approved.

6.6

Approval of the cancellation will set a flag for standard notices to be issued to the person who claims the right or interest in the trade mark, and the owner of the trade mark. (This will not be published)

6.7

As the record of a claim does not appear on the Certificate of Registration, there will be no need to amend the certificate.