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TRADE MARKS ACT 1995 No. 119 of 1995 - SECT 44

Identical etc. trade marks
44. (1) Subject to subsections (3) and (4), an application for the
registration of a trade mark (applicant's trade mark) in respect of goods
(applicant's goods) must be rejected if:

   (a)  the applicant's trade mark is substantially identical with, or
        deceptively similar to:

        (i)    a trade mark registered by another person in respect of similar
               goods or closely related services; or

        (ii)   a trade mark whose registration in respect of similar goods or
               closely related services is being sought by another person; and

   (b)  the priority date for the registration of the applicant's trade mark
        in respect of the applicant's goods is not earlier than the priority
        date for the registration of the other trade mark in respect of the
        similar goods or closely related services. Note 1: For deceptively
        similar see section 10. Note 2: For similar goods see subsection
        14(1). Note 3: For priority date see section 12.

(2) Subject to subsections (3) and (4), an application for the registration of
a trade mark (applicant's trade mark) in respect of services (applicant's
services) must be rejected if:

   (a)  it is substantially identical with, or deceptively similar to:

        (i)    a trade mark registered by another person in respect of similar
               services or closely related goods; or

        (ii)   a trade mark whose registration in respect of similar services
               or closely related goods is being sought by another person; and

   (b)  the priority date for the registration of the applicant's trade mark
        in respect of the applicant's services is not earlier than the
        priority date for the registration of the other trade mark in respect
        of the similar services or closely related goods. Note 1: For
        deceptively similar see section 10. Note 2: For similar services see
        subsection 14(2). Note 3: For priority date see section 12.

(3) If the Registrar in either case is satisfied:

   (a)  that there has been honest concurrent use of the 2 trade marks; or

   (b)  that, because of other circumstances, it is proper to do so; the
        Registrar may accept the application for the registration of the
        applicant's trade mark subject to any conditions or limitations that
        the Registrar thinks fit to impose. If the applicant's trade mark has
        been used only in a particular area, the limitations may include that
        the use of the trade mark is to be restricted to that particular area.
        Note: For limitations see section 6.

(4) If the Registrar in either case is satisfied that the applicant, or the
applicant and the predecessor in title of the applicant, have continuously
used the applicant's trade mark for a period:

   (a)  beginning before the priority date for the registration of the other
        trade mark in respect of:

        (i)    the similar goods or closely related services; or

        (ii)   the similar services or closely related goods; and

   (b)  ending on the priority date for the registration of the applicant's
        trade mark; the Registrar may not reject the application because of
        the existence of the other trade mark. Note 1: An authorised use of
        the trade mark by a person is taken to be a use of the trade mark by
        the owner of the trade mark (see subsection 7(3)). Note 2: For
        predecessor in title see section 6. Note 3: For priority date see
        section 12. 


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