Commonwealth Numbered Acts

TRADE MARKS ACT 1995 No. 119 of 1995 - SECT 87

87. (1) If section 24 or 25 applies in relation to a registered trade mark, a
prescribed court may, on the application of an aggrieved person, but subject
to subsection (2) and section 89, order that the Register be rectified by:

   (a)  cancelling the registration of the trade mark; or

   (b)  removing or amending any entry in the Register relating to the trade
        mark; having regard to the effect of section 24 or 25 (as the case may
        be) on the right of the registered owner of the trade mark to use the
        trade mark, or any sign that is part of the trade mark, in relation to
        particular goods or services.

(2) If section 24 or 25 applies in relation to the trade mark because the
trade mark contains a sign that:

   (a)  has become generally accepted within the relevant trade as the sign
        that describes or is the name of an article, substance or service; or

   (b)  describes or is the name of:

        (i)    an article or substance that was formerly exploited under a
               patent; or

        (ii)   a service that was formerly provided as a patented process; the
               court may decide not to make an order under subsection (1) and
               allow the trade mark to remain on the Register in respect of:

   (c)  the article or substance or goods of the same description; or

   (d)  the service or services of the same description; subject to any
        condition or limitation that the court may impose. Note 1: Sections 24
        and 25 provide that the registered owner of a trade mark does not have
        exclusive rights to use, or to authorise the use of, the trade mark if
        it consists of, or contains, a sign that:

   (a)  becomes generally accepted within the relevant trade as the sign that
        describes or is the name of an article, substance or service; or

   (b)  is the only commonly known way to describe or identify an article
        formerly exploited under a patent, or a service formerly provided as a
        patented process, where the patent has expired more than 2 years ago.
        Note 2: For registered trade mark, registered owner and Register see
        section  6.  Note 3: For prescribed court see section 190.