Definitions

registrability

Australian trade mark law

Australian trade mark law is based on the Trade Marks Act 1995 (Cth), which is administered by IP Australia, an Australian government agency within the Department of Industry, Tourism and Resources.

Amongst other things, the Trade Marks Act defines trade marks (including certification marks and collective marks), what constitutes trademark infringement and defences and exceptions thereto, and (together with the Trade Marks Regulations) sets out procedures for registration and other proceedings before the Registrar of Trade Marks. The legislation does not codify the law of trade marks in Australia; as a common law jurisdiction, a trade mark owner may also (for example) seek to protect its rights through legal proceedings for passing off.

Section 17 of the Trade Marks Act defines a trade mark as "a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person".

The procedure to register a trade mark in Australia is much the same as other countries. A completed application is filed with IP Australia (either by delivery to one of its regional offices or electronically) and checked ("examined") by an examiner of trade marks for compliance with formalities and substantive requirements (eg. registrability, and lack of confusing similarity with a conflicting trade mark). If an application is accepted it will be published for opposition purposes for three months, during which time third parties may oppose registration on certain grounds. If there are no oppositions, or any oppositions are overcome, a certificate of registration will issue.

The term of registration in Australia is 10 years, which may be extended for additional periods of 10 years. Failure to use a registered trade mark for a period of three years or more may expose the registration to cancellation on the grounds of non-use.

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