Commonwealth Numbered Acts

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TRADE MARKS ACT 1995 No. 119 of 1995 - SECT 230

Passing off actions
230. (1) Except as provided in subsection (2), this Act does not affect the
law relating to passing off.

(2) In an action for passing off arising out of the use by the defendant of a
registered trade mark:

   (a)  of which he or she is the registered owner or an authorised user; and

   (b)  that is substantially identical with, or deceptively similar to, the
        trade mark of the plaintiff; damages may not be awarded against the
        defendant if the defendant satisfies the court:

   (c)  that, at the time when the defendant began to use the trade mark, he
        or she was unaware, and had no reasonable means of finding out, that
        the trade mark of the plaintiff was in use; and

   (d)  that, when the defendant became aware of the existence and nature of
        the plaintiff's trade mark, he or she immediately ceased to use the
        trade mark in relation to the goods or services in relation to which
        it was used by the plaintiff. Note 1: For authorised user see section
        8. Note 2: For deceptively similar see section 10. 

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