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TRADE MARKS ACT 1995 !!!The following amendments (No. 106, 2006 and No. 114, 2006) have not been incorporated. - List of Sections

Section

Compilation Information

Long Title

Reader's Guide

TRADE MARKS ACT 1995
Part 1—Preliminary

1. Short title [ see Note 1]
2. Commencement [ see Note 1]
3. Act binds the Crown
4. Application of Act
4A. Application of the Criminal Code
5. Repeal of Trade Marks Act 1994
TRADE MARKS ACT 1995
Part 2—Interpretation

6. Definitions
7. Use of trade mark
8. Definitions of authorised user and authorised use
9. Definition of applied to and applied in relation to
10. Definition of deceptively similar
11. Definition of pending
12. Definition of priority date
13. Definition of remove from the Register
14. Definition of similar goods and similar services
15. Definition of originate in relation to wine
16. Definition of repealed Act
TRADE MARKS ACT 1995
Part 3—Trade marks and trade mark rights

17. What is a trade mark?
18. Certain signs not to be used as trade marks etc.
19. Certain trade marks may be registered
20. Rights given by registration of trade mark
21. Nature of registered trade mark as property
22. Power of registered owner to deal with trade mark
23. Limitation on rights if similar trade marks etc. registered by different persons
24. Trade mark consisting of sign that becomes accepted as sign describing article etc.
25. Trade mark relating to article etc. formerly manufactured under patent
26. Powers of authorised user of registered trade mark
TRADE MARKS ACT 1995
Part 4—Application for registration

TRADE MARKS ACT 1995
Division 1—General


27. Application—how made
28. Application by joint owners
29. Application for registration of trade mark whose registration has been sought in a Convention country—claim for priority
30. Particulars of application to be published
31. Registrar to examine, and report on, application
32. Registrar to decide on disputed classification of goods etc.
33. Application accepted or rejected
34. Notice etc. of decision
35. Appeal
36. Deferment of acceptance
37. Lapsing of application
38. Revocation of acceptance
TRADE MARKS ACT 1995
Division 2—Grounds for rejecting an application


39. Trade mark containing etc. certain signs
40. Trade mark that cannot be represented graphically
41. Trade mark not distinguishing applicant's goods or services
42. Trade mark scandalous or its use contrary to law
43. Trade mark likely to deceive or cause confusion
44. Identical etc. trade marks
TRADE MARKS ACT 1995
Division 3—Divisional applications


45. Definition of divisional application
47. Divisional application for registration of part of trade mark
48. Divisional application for registration of trade mark in respect of some of the goods etc. specified in the initial application
49. Divisional application for registration of trade mark in respect of goods etc. excluded from the initial application
50. Filing date
TRADE MARKS ACT 1995
Division 4—Application for registration of series of trade marks


51. Application—series of trade marks
TRADE MARKS ACT 1995
Part 5—Opposition to registration

TRADE MARKS ACT 1995
Division 1—General


52. Opposition
53. Circumstances in which opposition may proceed in name of a person other than the person who filed the notice
54. Opposition proceedings
55. Decision
56. Appeal
TRADE MARKS ACT 1995
Division 2—Grounds for opposing registration


57. Registration may be opposed on same grounds as for rejection
58. Applicant not owner of trade mark
59. Applicant not intending to use trade mark
60. Trade mark similar to trade mark that has acquired a reputation in Australia
61. Trade mark containing or consisting of a false geographical indication
62. Application etc. defective etc.
TRADE MARKS ACT 1995
Part 6—Amendment of application for registration of a trade mark and
other documents

63. Amendment of application for registration of trade mark
64. Amendment before particulars of application are published
65. Amendment after particulars of application have been published
66. Amendment of other documents
67. Appeal
TRADE MARKS ACT 1995
Part 7—Registration of trade marks

TRADE MARKS ACT 1995
Division 1—Initial registration


68. Obligation to register
69. Registration—how effected
70. Colours in registered trade marks
71. Notification of registration
72. Date and term of registration
73. Ceasing of registration
74. Disclaimers
TRADE MARKS ACT 1995
Division 2—Renewal of registration (general)


74A. Application of this Division
75. Request for renewal
76. Notice of renewal due
77. Renewal before registration expires
78. Failure to renew
79. Renewal within 12 months after registration expires
80. Status of unrenewed trade mark
TRADE MARKS ACT 1995
Division 3—Renewal of registration (registration delayed for
10 or more years after filing date)


80A. Application of this Division
80B. Expiry of registration
80C. Notice about renewal
80D. Request for renewal
80E. Renewal within prescribed period
80F. Failure to renew
80G. Renewal within 10 months after end of prescribed period
80H. Status of unrenewed trade mark
TRADE MARKS ACT 1995
Part 8—Amendment and cancellation of registration

TRADE MARKS ACT 1995
Division 1—Action by Registrar


81. Correction of Register
82. Adaptation of classification
83. Amendment of particulars of trade mark entered in Register
84. Cancellation of registration
TRADE MARKS ACT 1995
Division 2—Action by court


85. Amendment to correct error or omission
86. Amendment or cancellation on ground of contravention of condition etc.
87. Amendment or cancellation—loss of exclusive rights to use trade mark
88. Amendment or cancellation—other specified grounds
89. Rectification may not be granted in certain cases if registered owner not at fault etc.
90. Duties and powers of Registrar
TRADE MARKS ACT 1995
Division 3—Amendment of certificate of registration


91. Amendment of certificate of registration
TRADE MARKS ACT 1995
Part 9—Removal of trade mark from Register for non-use

92. Application for removal of trade mark from Register etc.
93. Time for making application
94. Referral to court
95. Notification of application
96. Notice of opposition
96A. Circumstances in which opposition may proceed in name of a person other than the person who filed the notice
97. Removal of trade mark from the Register etc. if application unopposed
98. Trade mark restored to Register if notice of opposition filed within extended time
99. Proceedings before Registrar
100. Burden on opponent to establish use of trade mark etc.
101. Determination of opposed application—general
102. Determination of opposed application—localised use of trade mark
103. Registrar to comply with order of court
104. Appeal
105. Certificate—use of trade mark
TRADE MARKS ACT 1995
Part 10—Assignment and transmission of trade marks

106. Assignment etc. of trade mark
107. Applications for record to be made of assignment etc. of trade mark whose registration is sought
108. Recording of assignment etc. of trade mark whose registration is sought
109. Application for record of assignment etc. of registered trade mark to be entered in Register
110. Recording of assignment etc. of registered trade mark
111. Notice of application to be given to person recorded as claiming interest in trade mark etc.
TRADE MARKS ACT 1995
Part 11—Voluntary recording of claims to interests in and rights in
respect of trade marks

TRADE MARKS ACT 1995
Division 1—Preliminary


112. Object of Part
TRADE MARKS ACT 1995
Division 2—Interests in, and rights in respect of, registered
trade marks


113. Application to have claims to interest etc. recorded
114. Record of claims to interest etc.
115. Amendment and cancellation
116. Record not proof etc. of existence of right etc.
TRADE MARKS ACT 1995
Division 3—Interests in, and rights in respect of, unregistered
trade marks


117. Application to have claims to interest etc. recorded
118. Record of claims to interest etc.
119. Amendment and cancellation
TRADE MARKS ACT 1995
Part 12—Infringement of trade marks

120. When is a registered trade mark infringed?
121. Infringement of trade mark by breach of certain restrictions
122. When is a trade mark not infringed?
123. Goods etc. to which registered trade mark has been applied by or with consent of registered owner
124. Prior use of identical trade mark etc.
125. What courts may hear action for infringement of registered trade mark
126. What relief can be obtained from court
127. Special case—plaintiff not entitled to damages etc.
128. Circumstances in which action may not be brought
129. Groundless threats of legal proceedings
130. Counterclaim by defendant in action on groundless threats
TRADE MARKS ACT 1995
Part 13—Importation of goods infringing Australian trade
marks

131. Object of Part
132. Notice of objection to importation
133. Customs CEO may seize goods infringing trade mark
133A. Determinations about owners of goods
134. Notice of seizure
135. Forfeiture of goods
136. Release of goods to owner—no action for infringement
137. Action for infringement of trade mark
138. Action for infringement by authorised user
139. Forfeited goods—how to be disposed of
140. Power of Customs CEO to retain control of goods
141. Insufficient security
142. Commonwealth not liable for loss etc. suffered because of seizure
143. Power to require information
144. Modification in relation to Norfolk Island etc.
TRADE MARKS ACT 1995
Part 14—Offences

145. Falsifying etc. a registered trade mark
146. Falsely applying a registered trade mark
147. Manufacture and possession of die etc. for use in commission of offence
148. Selling etc. goods with false marks
149. Penalty for offence under section 145, 146, 147 or 148
150. Aiding and abetting offences
151. False representations regarding trade marks
152. False entries in Register etc.
153. Disobeying summons etc.
154. Refusing to give evidence etc.
156. Unregistered persons
157. False representation about Trade Marks Office
159. Forfeiture orders under the proceeds of crime legislation
160. Conduct of employees and agents of natural persons
TRADE MARKS ACT 1995
Part 15—Collective trade marks

161. Object of Part
162. What is a collective trade mark?
163. Application of Act
164. Application for registration
165. Limitation on rights given by registered collective trade mark
166. Assignment etc. of collective trade mark
167. Infringement of collective trade mark
TRADE MARKS ACT 1995
Part 16—Certification trade marks

168. Object of Part
169. What is a certification trade mark?
170. Application of Act
171. Rights given by registration of a certification trade mark
172. Rights of persons allowed to use certification trade mark
173. Rules governing the use of certification trade marks
174. Registrar to reject application or send it to Commission
175. Certificate by Commission
176. Acceptance of application
177. Additional ground for rejecting an application or opposing registration—certification trade mark not distinguishing certified goods or services
178. Variation of rules
179. Rules to be available for inspection
180. Assignment of registered certification trade mark
180A. Assignment of unregistered certification trade mark
181. Rectification of the Register by order of court
182. Variation of rules by order of court
183. Delegation of Commission's powers and functions
TRADE MARKS ACT 1995
Part 17—Defensive trade marks

184. Object of Part
185. Defensive trade marks
186. Application of Act
187. Additional grounds for rejecting application for registration or opposing registration
188. Amendment or cancellation of registration by order of court
189. Cancellation of registration by Registrar
TRADE MARKS ACT 1995
Part 17A—Protected international trade marks under the Madrid
Protocol

189A. Regulations implementing the Madrid Protocol
TRADE MARKS ACT 1995
Part 18—Jurisdiction and powers of courts

190. Prescribed courts
191. Jurisdiction of the Federal Court
192. Jurisdiction of other prescribed courts
193. Exercise of jurisdiction
194. Transfer of proceedings
195. Appeals
196. Registrar may appear in appeals
197. Powers of Federal Court
198. Practice and procedure of prescribed courts
TRADE MARKS ACT 1995
Part 19—Administration

199. Trade Marks Office and sub-offices
200. Seal of Trade Marks Office
201. Registrar of Trade Marks
202. Registrar's powers
203. Exercise of power by Registrar
204. Registrar to act as soon as practicable
205. Deputy Registrar of Trade Marks
206. Delegation of Registrar's powers and functions
TRADE MARKS ACT 1995
Part 20—The Register and official documents

207. The Register
208. Register may be kept on computer
209. Inspection of Register
210. Evidence—the Register
211. Evidence—certified copies of documents
TRADE MARKS ACT 1995
Part 21—Miscellaneous

TRADE MARKS ACT 1995
Division 1—Applications and other documents


212. Making and signing applications etc.
213. Filing of documents
214. Withdrawal of application etc.
215. Address for service
216. Change of name
217. Death of applicant etc.
TRADE MARKS ACT 1995
Division 2—Proceedings before the Registrar or a court


218. Description of registered trade mark
219. Evidence of trade usage
220. Death of party to proceeding before Registrar
221. Costs awarded by Registrar
222. Security for costs
TRADE MARKS ACT 1995
Division 3—General


223. Fees
224. Extension of time
225. Convention countries
226. Publication of Official Journal etc.
227. Notice regarding review of decision by Administrative Appeals Tribunal
228. Use of trade mark for export trade
228A. Registration of trade marks attorneys
228B. Deregistration of trade marks attorneys
229. Privileges of trade marks attorney and patent attorney
230. Passing off actions
231. Regulations
TRADE MARKS ACT 1995
Part 22—Repeal and transitional

TRADE MARKS ACT 1995
Division 1—Repeal


232. Repeal
TRADE MARKS ACT 1995
Division 2—Marks registered under the repealed Act


233. Automatic registration under this Act
234. Registration conclusive after 7 years
235. Term of registration
236. Renewal
237. Restoration of particulars to Register and renewal of registration where registration expired within 12 months before 1 January 1996
238. Disclaimers
239. Rules governing the use of certification trade marks registered in Part C of the old register
TRADE MARKS ACT 1995
Division 3—Matters pending immediately before repeal of repealed
Act


240. Applications, notices etc.—general
241. Application for registration of trade mark
242. Divisional application in relation to pending application
243. More than one application lodged on same day for registration of same trade mark
244. Application for registration of trade mark whose registration has been sought in Convention country
245. Application for registration of a mark in Part C of the old register
246. Application for registration of a mark in Part D of the old register
247. Amendment of application—specification of goods or services
248. Revival of application for registration of trade mark that had lapsed before 1 January 1996
249. Application for registration of assignment etc.
250. Rectification of Register
251. Action for removal of trade mark from Register for non-use
252. Action for infringement of trade mark etc.
253. Action under this Act for infringement of trade mark under repealed Act
254. Acts not constituting infringement of existing registered mark
254A. Acts not constituting infringement of trade mark—pending application under the repealed Act
254B. Part B defence—infringement of existing registered mark
254C. Part B defence—infringement of trade mark (pending application under the repealed Act)
255. Application of this Act—general
256. Fees
TRADE MARKS ACT 1995
Division 4—General


257. The Registrar and Deputy Registrar
258. Confidential information received by Registrar under section 74 of the repealed Act
259. Documents kept under repealed Act
260. Address for service
261. Notices to Customs CEO objecting to importation of goods
TRADE MARKS ACT 1995
Notes to the Trade Marks Act 1995

Table A

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