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TOBACCO PLAIN PACKAGING ACT 2011 - SECT 28

Effect on the Trade Marks Act 1995 of non-use of trade mark as a result of this Act

             (1)  For the purposes of the Trade Marks Act 1995 , and regulations made under that Act, an applicant for the registration of a trade mark in respect of tobacco products is taken to intend to:

                     (a)  use the trade mark in Australia in relation to those products; or

                     (b)  authorise another person to use the trade mark in Australia in relation to those products; or

                     (c)  assign the trade mark to a body corporate that is about to be constituted with a view to the body corporate using the trade mark in Australia in relation to those products;

if the applicant would intend to do so but for the operation of this Act.

             (2)  To avoid doubt, for the purposes of paragraph 42(b) of the Trade Marks Act 1995 , this Act does not have the effect that the use of a trade mark in relation to tobacco products would be contrary to law.

             (3)  To avoid doubt, for the purposes of sections 38 and 84A of the Trade Marks Act 1995 , and regulations 17A.27 and 17A.42A of the Trade Marks Regulations 1995 :

                     (a)  the operation of this Act; or

                     (b)  the circumstance that a person is prevented, by or under this Act, from using a trade mark on or in relation to the retail packaging of tobacco products, or on tobacco products;

are not circumstances that make it reasonable or appropriate:

                     (c)  not to register the trade mark; or

                     (d)  to revoke the acceptance of an application for registration of the trade mark; or

                     (e)  to register the trade mark subject to conditions or limitations; or

                      (f)  to revoke the registration of the trade mark.

             (4)  For the purposes of paragraph 100(1)(c) of the Trade Marks Act 1995 , an opponent is taken to have rebutted an allegation if the opponent establishes that the registered owner would have used the trade mark in Australia on or in relation to the retail packaging of tobacco products, or on tobacco products, but for the operation of this Act.

Trade Marks regulations applying provisions of Trade Marks Act

             (5)  Subsections (1) to (4) also apply in relation to regulations made under the Trade Marks Act 1995 that:

                     (a)  apply provisions of the Trade Marks Act 1995 that are affected by this section, including where the regulations apply those provisions in modified form; and

                     (b)  provide in similar terms to provisions of the Trade Marks Act 1995 that are affected by this section.



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