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Your trade mark: use it or lose it

Registered your trade mark? Great, but are you still using it?

Registration of a trade mark is only the first step to adequately protecting your business’ brand. If you do not continue to use your trade mark after it is registered, do not be surprised if a third party applies to have your trade mark removed from the IP Australia trade mark register.

A third party, usually one looking to register a trade mark similar to an already existing registered trade mark, may apply to have a registered trade mark removed from the register on the basis that the registered trade mark has not been used in Australia for a period of three years. The only qualification is that the trade mark must have been registered for at least five years before such a non-use application is made.

If a non-use application is made against a registered trade mark, the onus is on the owner of the trade mark to defend the allegation. If the non-use application simply satisfies the lodgement requirements and is not challenged, the registered trade mark will be removed from the register.

It is also important to remember that the owner must demonstrate that the trade mark has been used in Australia, use in other countries will not be sufficient.

A registered trade mark is a powerful means in protecting a business’ brand. While taking the first step in registering a trade mark is pivotal in the protection process, the importance of continuing to use the trade mark should not be overlooked.

For any trade mark or other intellectual property queries, please do not hesitate to contact Rob Kennett or Katie Aust.

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