Div 1General

Division 1—General Application—how made 25.(1) A person who claims to be the owner of a trade mark may apply to the register for the registration of the trade mark. (a) be in accordance with the regulations; and (3) Without limiting the particulars that may be included in an application, the application must: (a) include a representation of the trade mark; and (b) specify the goods and/or services (“relevant goods and services”) in respect of which it is sought to register the trade mark; and (c) contain: (i) a statement that the applicant is the owner of the trade mark; and (ii) a statement of a kind referred to in subsection (4) relating to the use of the trade mark. (4) The application must contain: (a) a statement that the applicant: (i) is using or intends to use; or (ii) has authorised or intends to authorise another person to use; the trade mark in relation to the relevant goods and services; or (b) a statement that the applicant intends to assign the trade mark to a body corporate that is about to be constituted and that the body corporate intends to use the trade mark in relation to the relevant goods and services. Note: For “use” see section 6. (5) An application may be made in respect of goods and services of one or more of the classes prescribed under subsection 18(3). Application by joint owners 26. If the relations between 2 or more persons interested in a trade mark are such that none of them is entitled to use the trade mark except: (a) on behalf of all of them; or (b) in relation to goods or services with which all of them are connected in the course of trade; the persons may together apply for its registration under subsection 25(1). Application for registration of trade mark whose registration has been sought in a Convention country—claim for priority 27.(1) If: (a) a person has made an application for the registration of a trade mark in one or more than one Convention country; and (b) within 6 months after the day on which that application, or the first of those applications, was made, that person or that person’s successor in title applies to the Registrar for the registration of the trade mark; the person or the person’s successor in title may, when filing the application, or within the prescribed period after filing the application but before the application is accepted, claim a right of priority for the application in accordance with the regulations. (2) The regulations may provide for the filing of documents in support of a notice claiming priority and, in particular, for the filing of certified copies of any application for the registration of the trade mark made in a Convention country. Details of application to be published 28. The Registrar must publish the details of the application in accordance with the regulations. Application—-trade mark consisting etc. of name etc. of a person other than the applicant 29.(1) If the application is for the registration of a trade mark that consists of, or contains, the name or a representation of a living person, the Registrar may ask the applicant to provide evidence that the person has consented to the name or representation appearing in the trade mark. (2) If the application is for the registration of a trade mark that consists of, or contains, the name or a representation of a person who has recently died, the Registrar may ask the applicant to provide evidence that the legal representative of the deceased person has consented to the name or representation appearing in the trade mark. Examination of application 30.(1) The Registrar must examine: (a) whether the application has been made in accordance with this Act; and (b) whether there are grounds under Division 2 for rejecting it. (2) The examination is to be carried out in accordance with the regulations. Registrar to decide on disputed classification of goods etc. 31. If a question arises as to the class in which goods or services are comprised: (a) that question is to be decided by the Registrar; and (b) the decision of the Registrar is not subject to appeal and may not be called into question in an appeal or other proceedings under this Act. Application accepted or rejected 32.(1) If the Registrar is satisfied that: (a) the application has not been made in accordance with this Act; or (b) there are grounds for rejecting it; the Registrar must reject the application. Note: For the grounds on which an application may be rejected see Division 2. (2) The Registrar may not reject an application without giving the applicant an opportunity of being heard. (3) If the Registrar is not satisfied as set out in subsection (1), he or she must accept the application. (4) The Registrar may accept the application subject to conditions or limitations. Notice etc. of decision 33. The Registrar must: (a) notify the applicant in writing of: (i) his or her findings, and any prescribed matter, arising out of the examination; and (ii) his or her decision under section 32; and (b) advertise the decision in the Official Journal. 34. The applicant may appeal to the Federal Court against a decision of the Registrar: (a) to accept the application subject to conditions or limitations; or (b) to reject the application. Lapsing of application 35.(1) Subject to subsection (2), an application lapses if it is not accepted within the prescribed period. (2) If, after the prescribed period has expired, the Registrar under section 234 extends the period within which the application may be accepted, the application: (a) is taken not to have lapsed when the prescribed period expired; and (b) lapses if it is not accepted within the extended period. Revocation of acceptance 36.(1) If, before a trade mark is registered, the Registrar is satisfied: (a) that the application for registration of the trade mark was accepted because of an error or omission in the course of the examination; or (b) that, in the special circumstances of the case, the trade mark should not be registered, or should be registered subject to conditions or limitations, or to additional or different conditions or limitations; the Registrar may revoke the acceptance of the application. (2) If the Registrar revokes the acceptance, the Registrar must examine the application as necessary under section 30. (3) In every case, sections 32 and 33 again apply in relation to the application.