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TRADE MARKS ACT 1995 No. 119 of 1995 - SECT 88
Amendment or cancellation-other specified grounds
88. (1) Subject to subsection (2) and section 89, a prescribed court may, on
the application of an aggrieved person, order that the Register be rectified
by:
(a) cancelling the registration of a trade mark; or
(b) removing or amending an entry wrongly made or remaining on the
Register; or
(c) entering any condition or limitation affecting the registration of a
trade mark that ought to be entered.
(2) An application may be made on any of the following grounds, and on no
other grounds:
(a) any of the grounds on which the registration of the trade mark could
have been opposed under Division 2 of Part 5;
(b) an amendment of the application for the registration of the trade mark
was obtained as a result of fraud, false suggestion or
misrepresentation;
(c) because of the circumstances applying at the time when the application
for rectification is filed, the use of the trade mark is likely to
deceive or cause confusion for a reason other than one for which:
(i) the application for the registration of the trade mark could
have been rejected under section 43 or 44; or
(ii) the registration of the trade mark could have been opposed
under section 60;
(d) the following circumstances apply:
(i) the Registrar accepted the application for the registration of
the trade mark because he or she was satisfied, having regard
to the extent to which the trade mark was inherently adapted to
distinguish the goods or services of the applicant for
registration from the goods or services of any other person and
the intended use of the trade mark, that the trade mark would
distinguish those goods or services as being those of the
applicant (see paragraph 41(5)(a));
(ii) the application for rectification is made at least 10 years
after the filing date;
(iii) in the intervening period, the trade mark has not been used to
an extent sufficient for it to distinguish, in fact, the goods
or services of the registered owner from the goods or services
of any other person;
(e) if the application is in respect of an entry in the Register-the entry
was made, or has been previously amended, as a result of fraud, false
suggestion or misrepresentation. Note 1: For prescribed court see
section 190. Note 2: For file, filing date and registered owner see
section 6.
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