Commonwealth Numbered Acts

TRADE MARKS ACT 1995 No. 119 of 1995 - SECT 92

92. (1) A person aggrieved by the fact that a trade mark is or may be
registered may, subject to subsection (3), apply to the Registrar for the
trade mark to be removed from the Register.

(2) The application:

   (a)  must be in accordance with the regulations; and

   (b)  may be made in respect of any or all of the goods and/or services in
        respect of which the trade mark may be, or is, registered.

(3) An application may not be made to the Registrar under subsection (1) if an
action concerning the trade mark is pending in a prescribed court, but the
person aggrieved may apply to the court for an order directing the Registrar
to remove the trade mark from the Register. Note: For prescribed court see
section 190.

(4) An application under subsection (1) or (3) (non-use application) may be
made on either or both of the following grounds, and on no other grounds:

   (a)  that, on the day on which the application for the registration of the
        trade mark was filed, the applicant for registration had no intention
        in good faith:

        (i)    to use the trade mark in Australia; or

        (ii)   to authorise the use of the trade mark in Australia; or

        (iii)  to assign the trade mark to a body corporate for use by the
               body corporate in Australia; in relation to the goods and/or
               services to which the non-use application relates and that the
               registered owner:

        (iv)   has not used the trade mark in Australia; or

        (v)    has not used the trade mark in good faith in Australia; in
               relation to those goods and/or services at any time before the
               period of one month ending on the day on which the non-use
               application is filed;

   (b)  that the trade mark has remained registered for a continuous period of
        3 years ending one month before the day on which the non-use
        application is filed, and, at no time during that period, the person
        who was then the registered owner:

        (i)    used the trade mark in Australia; or

        (ii)   used the trade mark in good faith in Australia; in relation to
               the goods and/or services to which the application relates.
               Note: For file see section 6.

(5) If the right or interest on which a person relied to make an application
(under subsection (1) or (3)) to obtain the removal of a trade mark from the
Register becomes vested in another person, the other person may, on giving
notice of the relevant facts to the Registrar or the court (as the case
requires), be substituted for the first-mentioned person as the applicant.