Intellectual Property Law Update - Did they just use that trade mark? Some considerations on the elusive notion of trade mark use

Intellectual Property
Siobhan Ryan Headshot
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The concept of “use” features in most parts of the Trade Marks Act 1955 (Cth) – from the most basic questions of “What is a trade mark?” and “[What are the] Rights given by registration?”, to the operative clauses in which use, or intention to use, are prerequisites for making a valid application, and maintaining a registration – and so on to infringement, which requires that there be use (of a sign) as a trade mark. 

Depending on which part of the Act concerns your client, the answer to the question, “Did they just use that trade mark?” coud determine its rights to injunctions, damages or profits in an infringement action; or its monopoly, if it is seeking registration or defending a non-use action. 

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*This article was originally published in the March 2011 Journal of the Intellectual Property Society of Australia and New Zealand Inc.

Siobhan Ryan Headshot
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Siobhan Ryan is an experienced intellectual property lawyer, specialising in trade marks and copyright

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