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TRADE MARKS ACT 1995 No. 119 of 1995 - SECT 102

Determination of opposed application-localised use of trade mark
102. (1) This section applies if an application for the removal of a trade
mark (challenged trade mark) from the Register is made on the ground referred
to in paragraph 92(4)(b) and:

   (a)  the applicant is the registered owner of a trade mark that is
        substantially identical with, or deceptively similar to, the
        challenged trade mark and is registered in respect of the goods and/or
        services specified in the application subject to the condition or
        limitation that the use of the trade mark is to be restricted to:

        (i)    goods and/or services to be dealt with or provided in a
               particular place (specified place) in Australia (otherwise than
               for export from Australia); or

        (ii)   goods and/or services to be exported to a particular market
               (specified market); or

   (b)  the Registrar or the court is of the opinion that such a trade mark
        may properly be registered in the name of the applicant with that
        condition or limitation. Note 1: For registered owner see section 6.
        Note 2: For deceptively similar see section 10.

(2) If the Registrar or the court is satisfied:

   (a)  that the challenged trade mark has remained registered for the period
        referred to in paragraph 92(4)(b); and

   (b)  that during that period there has been no use, or no use in good
        faith, of the challenged trade mark in relation to:

        (i)    goods or services dealt with or provided in the specified
               place; or

        (ii)   goods or services to be exported to the specified market; the
               Registrar may decide, or the court may order, that the
               challenged trade mark should not be removed from the Register
               but that the registration of the trade mark should be subject
               to the conditions or limitations that the Registrar or the
               court considers necessary to ensure that the registration does
               not extend to the use of the trade mark in relation to:

   (c)  goods or services dealt with or provided in the specified place; or

   (d)  goods or services to be exported to the specified market. Note: For
        limitations see section 6. 


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