Annex A1 Information for applicants on the preparation and presentation of a declaration including model layout

HEADING:

The document must be headed with the word “Declaration”. Beneath this you should give details of the applicant/s, the trade mark/s and application/s to which the evidence applies. These details should accord with those on the Application Form/s.

SECTION 1 - DECLARATION and CERTIFIED TRANSLATION REQUIREMENTS

Declarations must be in English or accompanied by a certified translation into English. Certification of a translation may be in the following form:

I, (name of translator) of (address) being conversant and capable in both English and (relevant language), hereby confirm that I have translated the declaration of (declarant's name) dated (date) and certify that this is a true translation of the original declaration.

Signed ____________________________ 

Witnessed _________________________

SECTION 2 - INTRODUCTION

The following information should be included:

• the name of the declarant
• the address of the declarant (either the official business address or a private address)
• the position of the declarant within the applicant company
• the length of service of the declarant in that position
• the source/s of the information to be given, which may be personal knowledge, business records or any other source.

SECTION 3 - DATE OF FIRST USE AND REPRESENTATION OF THE TRADE MARK

State the date the trade mark was first used in Australia (month and year if possible) on the particular goods and/or services. Note that use includes advertising of the goods or services, as well as actual sales or transactions.

If you are claiming use of a trade mark from a time before you owned it, through a predecessor in title, state the date of acquisition of the trade mark and the name of the former owner. If there have been multiple previous owners, please give details.

Incorporate a representation of the trade mark in the exact manner in which it is used. If variations exist, or have existed, please describe these or give examples, and indicate the time period during which each variation was used.

SECTION 4 - SPECIFICATION

The goods and services on which the trade mark has been used should be listed individually or grouped into items of like nature. The year of first use or an estimation of the date of first use for each item or group should be given.

SECTION 5 - EXHIBITS

Examples of the trade mark in use on the goods/services in question should be annexed to the declaration as exhibits. Providing clear digital images of any objects bearing the trade mark will be as effective as providing the objects themselves. Other supporting material, such as internet extracts, newspaper or magazine cuttings, advertising material, trade declarations, customer surveys, copies of the trade mark as registered in other jurisdictions, etc., may also be annexed as exhibits

Declarations and annexures should be submitted in electronic format via the online services page. Any annexures submitted via the online services page as attachments should be listed in the declaration and clearly cross referenced with the file names. There are guidelines available for accepted file types and file sizes for online services.

Note that such material should be dated, or an estimate of its date of use given.

SECTION 6 - THE EXTENT OF TURNOVER

The number of items sold or service transactions undertaken under the trade mark should be indicated, giving annual figures. Figures showing sales and fees prior to filing are of more weight than those since filing. In the case of goods, state whether figures are wholesale, retail, or ex-factory. An indication of market-share may be included.

Where a wide range of goods/services is claimed, overall figures may not allow an adequate assessment to be made. A break-down of figures will be helpful in such circumstances.  All amounts quoted must be in Australian dollars.

SECTION 7 - AREA OF USE

The states of Australia in which the trade mark has been used, and the dates of first use in each, should be listed.

If the area of use is limited, please include the reason/s.

If the trade mark has not been used in Australia, details of the markets in which it has been used should be given. Use in similar jurisdictions carries more weight than use in very different jurisdictions.

SECTION 8 - ADVERTISING STRATEGY AND EXPENDITURE

The kinds of advertising undertaken should be listed (e.g. TV, internet, social media, radio, newspaper, magazine, trade publication, trade fair, sponsorships, signage, billboards). Details of titles of publications, websites and names of TV channels and radio stations used should be given.

Amounts spent on advertising the trade mark should be given in the form of annual figures or estimates. All amounts given must be stated in Australian dollars.

SECTION 9 - ANY OTHER INFORMATION YOU CONSIDER RELEVANT

SECTION 10 - DECLARATION

The person making the declaration must state that they believe the declaration to be true and correct.

The declaration must be signed and dated by the person making the declaration and the place where the declaration is made must be stated.