Commonwealth Numbered Acts

TRADE MARKS ACT 1995 No. 119 of 1995 - SECT 129

129. (1) If a person threatens to bring an action against another person
(threatened person) on the ground that the threatened person has infringed:

   (a)  a registered trade mark; or

   (b)  a trade mark alleged by the person to be registered; any person
        aggrieved by the threat (plaintiff) may bring an action (either in a
        prescribed court or in any other court having jurisdiction) against
        the person making the threat (defendant). Note: For prescribed court
        see section 190.

(2) The purpose of the action is to obtain from the court:

   (a)  a declaration that the defendant has no grounds for making the threat;
        and

   (b)  an injunction restraining the defendant from continuing to make the
        threat.
The plaintiff may also recover any damages that he or she has sustained
because of the defendant's conduct.

(3) The action may be brought whether or not the defendant is the registered
owner, or an authorised user, of the trade mark alleged to have been
infringed. Note: For authorised user see section 8.

(4) The court may not find in favour of the plaintiff if the defendant
satisfies the court that:

   (a)  the trade mark is registered; and

   (b)  the acts of the threatened person in respect of which the defendant
        threatened to bring an action constitute an infringement of the trade
        mark.

(5) An action may not be brought, or (if brought) may not proceed, under this
section if the registered owner of the trade mark, or an authorised user of
the trade mark having power to bring an action for infringement of the trade
mark, with due diligence, begins and pursues an action against the threatened
person for infringement of the trade mark. Note: An authorised user of the
trade mark may not have power to bring an action for infringement of the trade
mark because of the terms of the agreement between the authorised user and the
registered owner of the trade mark (see section 26).

(6) This section does not make a lawyer or patent attorney liable to an action
for an act done in a professional capacity on behalf of a client. Note: For
lawyer and patent attorney see section 6.