121Effect on the Trade Marks Act of non‑use of trade mark as a result of this Act

121 Effect on the Trade Marks Act of non‑use of trade mark as a result of this Act

Effect on use requirements under Trade Marks Act (1) For the purposes of the Trade Marks Act and regulations made under that Act, an applicant for the registration of a trade mark in respect of a regulated tobacco item is taken to intend to: (a) use the trade mark in Australia in relation to that item; or (b) authorise another person to use the trade mark in Australia in relation to that item; or (c) assign the trade mark to a body corporate that is about to be constituted with a view to the body corporate using the trade mark in Australia in relation to that item; if the applicant would intend to do so but for the operation of this Act. (2) To avoid doubt, for the purposes of paragraph 42(b) of the Trade Marks Act, this Act does not have the effect that the use of a trade mark in relation to a regulated tobacco item would be contrary to law. Effect on registration under Trade Marks Act (3) Neither: (a) the operation of this Act; nor (b) the circumstance that a person is prevented, by or under this Act, from using a trade mark on or in relation to regulated tobacco items, or on or in relation to the retail packaging of tobacco products; are circumstances that make it reasonable or appropriate: (c) not to register the trade mark; or (d) to revoke the acceptance of an application for registration of the trade mark; or (e) to register the trade mark subject to conditions or limitations; or (f) to revoke the registration of the trade mark. (4) To avoid doubt, subsection (3) applies for the purposes of: (a) sections 38 and 84A of the Trade Marks Act; and (b) any power of the Registrar of Trade Marks under the regulations made under that Act: (i) to revoke the acceptance of an international registration designating Australia (within the meaning of those regulations); or (ii) to amend or cease protection of a protected international trade mark (within the meaning of those regulations). Proceedings relating to opposed applications (5) For the purposes of paragraph 100(1)(c) of the Trade Marks Act, an opponent is taken to have rebutted an allegation if the opponent establishes that, but for the operation of this Act, the registered owner would have used the trade mark in Australia: (a) on or in relation to regulated tobacco items; or (b) on or in relation to the retail packaging of tobacco products. Trade Marks regulations applying provisions of Trade Marks Act (6) Subsections (1) to (5) of this section also apply in relation to regulations made under the Trade Marks Act that apply provisions of the Trade Marks Act that are affected by this section, including where the regulations apply those provisions in modified form.