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TRADE MARKS ACT 1995 No. 119 of 1995 - SECT 100

Burden on opponent to establish use of trade mark etc.
100. (1) In any proceedings relating to an opposed application, it is for the
opponent to rebut:

   (a)  any allegation made under paragraph 92(4)(a) that, on the day on which
        the application for the registration of the trade mark was filed, the
        applicant for registration had no intention in good faith:

        (i)    to use the trade mark in Australia; or

        (ii)   to authorise the use of the trade mark in Australia; or

        (iii)  to assign the trade mark to a body corporate for use by the
               body corporate in Australia; in relation to the goods and/or
               services to which the opposed application relates (relevant
               goods and/or services); or

   (b)  any allegation made under paragraph 92(4)(a) that the trade mark has
        not, at any time before the period of one month ending on the day on
        which the opposed application was filed, been used, or been used in
        good faith, by its registered owner in relation to the relevant goods
        and/or services; or

   (c)  any allegation made under paragraph 92(4)(b) that the trade mark has
        not, at any time during the period of 3 years ending one month before
        the day on which the opposed application was filed, been used, or been
        used in good faith, by its registered owner in relation to the
        relevant goods and/or services. Note 1: If the registered owner of the
        trade mark has authorised another person to use it, any authorised use
        of the trade mark by that person is taken to be a use of the trade
        mark by the registered owner (see subsection 7(3)). Note 2: For file
        and registered owner see section 6.

(2) For the purposes of paragraph 1(b), the opponent is taken to have rebutted
the allegation that the trade mark has not, at any time before the period
referred to in that paragraph, been used, or been used in good faith, by its
registered owner in relation to the relevant goods and/or services if:

   (a)  the opponent has established that the trade mark or the trade mark
        with additions or alterations not substantially affecting its
        identity, was used in good faith by its registered owner in relation
        to those goods or services before that period; or

   (b)  in a case where the trade mark has been assigned but a record of the
        assignment has not been entered in the Register:

        (i)    the opponent has established that the trade mark, or the trade
               mark with additions or alterations not substantially affecting
               its identity, was used in good faith by the assignee in
               relation to those goods or services before that period and that
               that use was in accordance with the terms of the assignment;
               and

        (ii)   the Registrar or the court is of the opinion that it is
               reasonable, having regard to all the circumstances of the case,
               to treat the use of the trade mark by the assignee before that
               period as having been a use of the trade mark in relation to
               those goods or services by the registered owner. Note 1: If the
               registered owner of the trade mark has authorised another
               person to use it, any authorised use of the trade mark by that
               person is taken to be a use of the trade mark by the registered
               owner (see subsection 7(3)). Note 2: For registered owner see
               section 6.

(3) For the purposes of paragraph 1(c), the opponent is taken to have rebutted
the allegation that the trade mark has not, at any time during the period
referred to in that paragraph, been used, or been used in good faith, by its
registered owner in relation to the relevant goods and/or services if:

   (a)  the opponent has established that the trade mark, or the trade mark
        with additions or alterations not substantially affecting its
        identity, was used in good faith by its registered owner in relation
        to those goods or services during that period; or

   (b)  in a case where the trade mark has been assigned but a record of the
        assignment has not been entered in the Register:

        (i)    the opponent has established that the trade mark, or the trade
               mark with additions or alterations not substantially affecting
               its identity, was used in good faith by the assignee of the
               trade mark in relation to those goods or services during that
               period and that that use was in accordance with the terms of
               the assignment; and

        (ii)   the Registrar or the court is of the opinion that it is
               reasonable, having regard to all the circumstances of the case,
               to treat the use of the trade mark by the assignee during that
               period as having been a use of the trade mark in relation to
               those goods or services by the registered owner; or

   (c)  the opponent has established that the trade mark was not used by its
        registered owner in relation to those goods and/or services during
        that period because of circumstances (whether affecting traders
        generally or only the registered owner of the trade mark) that were an
        obstacle to the use of the trade mark during that period. Note 1: If
        the registered owner of the trade mark has authorised another person
        to use it, any authorised use of the trade mark by that person is
        taken to be a use of the trade mark by the registered owner (see
        subsection 7(3)). Note 2: For registered owner see section 6. 


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