32A. Annex 6 - How to Supply Evidence of Use of a Trade Mark for Plants and/or Plant Material

How must you supply the evidence?

Evidence must be supplied as a declaration and should be submitted in electronic format via the online services page. Please follow the guidelines on file types and file sizes when submitting via the online services page. Using the online services page is both secure and convenient.

The declaration must be from:

• you, if you are the applicant, OR
• a principal officer or other authorised employee of the company (e.g. a director) if the applicant is a company, OR
• someone you have authorised to make the declaration on your behalf (e.g. a lawyer or trade mark attorney).

The declaration must:

• be headed with the title of the matter for which the declaration is made; AND
• be expressed in the first person; AND
• state the name and address of the person making the declaration; AND
• if the declaration is made on behalf of a company, state the name and address of the company and the position in the company of the person making the declaration; AND
• state the date on which the declaration is made; AND
• state the place at which the declaration is made; AND
• be divided into consecutively numbered paragraphs, confined to one subject where practicable; AND
• state that the person making the declaration believes the declaration to be true and correct; AND
• be signed by the person making the declaration.

The declaration form available via the online services page incorporates the above points.

What information must the evidence contain?

The declaration must contain:

• The name of the person or organisation using or intending to use the trade mark:
• you or your company, OR
• someone authorised to use the trade mark, OR
• a person or company from whom you acquired the trade mark (a predecessor in title).

For evidence of actual use the declaration should include:

• A brief history of the trade mark including:
  • The date when the trade mark was first used to sell goods (please give the year and, if possible, the month).
  • The area/s where the trade mark has been used (please give States or regions in Australia, and/or countries overseas).
  • The goods sold using the trade mark.
  • Examples of how the trade mark has been used to sell those goods (please refer to and attach digital images of packaging and/or advertising and/or promotional materials using the online services page).
  • The annual figures in Australian dollars spent on advertising and promoting the trade mark.
  • The annual turnover figures in Australian dollars for the goods sold using the trade mark. These figures must cover only the goods in your application.
  • Any other information or materials which will help show how the trade mark has been used (please refer to and attach digital images of these materials using the online services page).

For evidence of intended use, the declaration should include:

• Comprehensive details of business plans and/or other documents demonstrating a definite intention to use the trade mark (please refer to and attach copies of these documents).
• Details of the goods or services this planned use relates to.
• Figures in Australian dollars for any costs already incurred in preparing to use the trade mark.
• Any other information or materials which will help show how the trade mark is intended to be used (please refer to and attach copies of these materials using the online services page).

Can you prepare the evidence yourself?

You may prepare and supply evidence of use yourself or a trade mark attorney would be able to assist you.

Will the information you supply be treated as confidential?

IP Australia will accept your declaration in confidence. IP Australia will not accept an accompanying letter in confidence.

Please do not put any information which you consider to be confidential into an accompanying letter.

Will the information you supply be given to anyone else?

Other people may request access to information you have provided. Please take into account that:

• Letters become available for public inspection.
• Declarations may be available for public inspection. Copies of declarations may also be requested under the Freedom of Information Act. If this occurs, IP Australia may seek your comments before any release of your declaration.