Commonwealth Numbered Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]

TRADE MARKS ACT 1995 No. 119 of 1995 - SECT 120

When is a registered trade mark infringed?
120. (1) A person infringes a registered trade mark if the person uses as a
trade mark a sign that is substantially identical with, or deceptively similar
to, the trade mark in relation to goods or services in respect of which the
trade mark is registered. Note 1: For registered trade mark see section 6.
Note 2: For deceptively similar see section 10.

(2) A person infringes a registered trade mark if the person uses as a trade
mark a sign that is substantially identical with, or deceptively similar to,
the trade mark in relation to:

   (a)  goods of the same description as that of goods (registered goods) in
        respect of which the trade mark is registered; or

   (b)  services that are closely related to registered goods; or

   (c)  services of the same description as that of services (registered
        services) in respect of which the trade mark is registered; or

   (d)  goods that are closely related to registered services.
However, the person is not taken to have infringed the trade mark if the
person establishes that using the sign as the person did is not likely to
deceive or cause confusion. Note 1: For registered trade mark see section 6.
Note 2: For deceptively similar see section 10.

(3) A person infringes a registered trade mark if:

   (a)  the trade mark is well known in Australia; and

   (b)  the person uses as a trade mark a sign that is substantially identical
        with, or deceptively similar to, the trade mark in relation to:

        (i)    goods (unrelated goods) that are not of the same description as
               that of the goods in respect of which the trade mark is
               registered (registered goods) or are not closely related to
               services in respect of which the trade mark is registered
               (registered services); or

        (ii)   services (unrelated services) that are not of the same
               description as that of the registered services or are not
               closely related to registered goods; and

   (c)  because the trade mark is well known, the sign would be likely to be
        taken as indicating a connection between the unrelated goods or
        services and the registered owner of the trade mark; and

   (d)  for that reason, the interests of the registered owner are likely to
        be adversely affected. Note 1: For registered trade mark see section
        6. Note 2: For deceptively similar see section 10. Note 3: For well
        known in Australia see subsection (4).

(4) In deciding, for the purposes of paragraph (3)(a), whether a trade mark is
well known in Australia, one must take account of the extent to which the
trade mark is known within the relevant sector of the public, whether as a
result of the promotion of the trade mark or for any other reason. 


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback