Reduction in the trade mark non-use grace period – by Shu-Yen Lee

As a result of the Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Act 2018 which has passed recently, there are some changes to Australia’s IP legislation. Of these, the most significant to trade mark registration owners is the time period before which a trade mark registration can be challenged for non-use. Previously, the time period was five years from the filing date of the application however this has now been amended to three years from the date that the particulars of the registered trade mark are entered into the Register.

This reduced time period of use is applicable to all trade mark applications filed on or after 24 February 2019. The changes do not apply retrospectively.

Trade mark owners are reminded to check their trade mark portfolios to ensure that their specification of goods and services reflect their commercial activities and do not leave them vulnerable to non-use attacks after the appropriate time period after filing date of the application, whether this is five years or three years.

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