Part 2INTERPRETATION

PART 2—INTERPRETATION Definitions 5. In this Act, unless the contrary intention appears: “abandon”, in relation to a trade mark, has the meaning given by section 11; “applicant”, in relation to an application, means the person in whose name the application is for the time being proceeding; “applied to” and “applied in relation to” have the respective meanings given in section 8; “approved form” means a form approved by the Register for the purposes of the provision in which the expression appears; “assignment”, in relation to a trade mark, means an assignment by act of the parties concerned; “associated trade marks” has the meaning given by section 10; “association” does not include a body corporate; “Australia” includes each external Territory; “Australian continental shelf” means the continental shelf, within the meaning of the Continental Shelf Convention, adjacent to the coast of Australia (including the coast of any island forming part of a State or Territory); “authorised use”, in relation to a trade mark, has the meaning given by section 7; “certification trade mark” has the meaning given by section 177; “collective trade mark” has the meaning given by section 170; “commencing day” means the day on which this Act commences; “Commission” means: (a) the Trade Practices Commission established under the Trade Practices Act 1974; or (b) a member of the Commission (within the meaning of that Act); “Comptroller” means the Comptroller-General of Customs; “Convention country” means a country declared (by regulations made under section 235) to be a Convention country for the purposes of this Act; “date of registration”, in relation to a registered trade mark, means the day from which the registration of the trade mark is taken to have had effect under subsection 73(1) or (2); “deceptively similar” has the meaning given by section 9; “defensive trade mark” has the meaning given by section 193; “Deputy Registrar” means a Deputy Registrar of Trade Marks; “Designs Office” means the Designs Office established by the Designs Act 1906; “designated owner”, in relation to goods imported into Australia, means the person identified as the owner of the goods on the entry made in relation to the goods under section 68 of the Customs Act 1901; “divisional application” means an application made under Division 3 of Part 4 for the registration of a trade mark; “employee” means a person, other than the Registrar or a Deputy Registrar, who: (a) is an officer or employee within the meaning of the Public Service Act 1922 and is performing duties in the Trade Marks Office, the Patent Office or the Designs Office; or (b) is not such an officer or employee but performs services, for or on behalf of the Commonwealth, in the Trade Marks Office, the Patent Office or the Designs Office; “examine”, in relation to an application for the registration of a trade mark, means to carry out an examination under section 30 in relation to the application; “existing registered mark” means a mark that was registered in Part A, B, C or D of the old register immediately before the commencement of this Act; “Federal Court” means the Federal Court of Australia; “file” means to file at the Trade Marks Office; Note: See section 222: “filing date” means: (a) in relation to an application for the registration of a trade mark other than an application referred to in another paragraph of this definition—the day on which the application is filed; or (b) in relation to a divisional application for the registration of a trade mark: (i) if the Registrar has given a direction under section 50—the day on which the initial application (within the meaning of Division 3 of Part 4) was filed; or (ii) if subparagraph (i) does not apply—the day on which the divisional application is filed; or (c) in relation to an application to which section 249 applies—the day referred to in subsection 249(6); or (d) in relation to an application made under section 251—the day referred to in subsection 251(3); “geographical indication”, in relation to wine or spirits originating in a particular country or in a region or locality of that country, means a sign recognised in that country as a sign indicating that the wine or spirits: (a) originated in that country, region or locality; and (b) have a quality, reputation or other characteristic attributable to their geographical origin; “goods of a person” means goods dealt with in the course of trade by the person; “lawyer” means a barrister or solicitor of the High Court or of the Supreme Court of a State or Territory; “limitations” means limitations of the right to the exclusive use of a trade mark given by the registration of the trade mark, including limitations of that right as to: (a) mode of use; (b) use within a territorial area within Australia: or (c) use in relation to goods to be exported; “notified trade mark” means a trade mark in respect of which a notice under section 141 is in force; “objector”, in relation to seized goods, means any person who has given under section 141 a notice in respect of those goods that is in force; “Official Journal” means the Official Journal of Trade Marks mentioned in section 236; “old register” means the Register of Trade Marks kept under the repealed Act; “Patent Office” means the Patent Office established by the Patents Act 1990; “pending”, in relation to an application for the registration of a trade mark, has the meaning given by section 12; “person” includes a body of persons, whether incorporated or not; “person’s goods” (see goods of a person); “person’s services” (see services of a person); “prescribed court” means a court that is under section 199 a prescribed court for the purposes of this Act; “Register” means the Register of Trade Marks kept under section 215; “registered owner”, in relation to a registered trade mark, means the person in whose name the trade mark is registered; “registered patent attorney” means a person registered as a patent attorney under the Patents Act 1990; “registered trade mark” means a trade mark whose particulars are entered in the Register under this Act; “registered user”, in relation to a trade mark, means a person registered as a user of a trade mark under Part 11; “Registrar” means the Registrar of Trade Marks; “registration number”, in relation to a registered trade mark, means the number given to it under subsection 69(2); “remove from the Register”, in relation to a trade mark, has the meaning given by section 13; “repealed Act” has the meaning given by section 15; “restore to the Register”, in relation to a trade mark, has the meaning given by section 14; “seized goods” means goods seized under section 142; “services of a person” means services provided in the course of trade by a person; “sign” includes the following or any combination of the following, namely, any letter, word, name, signature, numeral, device, brand, heading, label, ticket, shape, color, sound or aspect of packaging; “this Act” includes the regulations; “trade mark” has the meaning given by section 16; “transmission” means: (a) transmission by operation of law; or (b) devolution on the personal representative of a deceased person; or (c) any other kind of transfer except assignment; “use”, in relation to a trade mark, has the meaning given by section 6; “word” includes an abbreviation of a word. Use of trade mark 6. (1) In this Act: (a) a reference to the use of a trade mark is a reference to the use of any visual or aural representation of a trade mark in relation to goods or services; and (b) a reference to the use of a trade mark in relation to goods is a reference to the use of a representation of a trade mark upon, or in physical or other relation to, the goods. (2) If the Registrar or a prescribed court, having regard to the circumstances of a particular case, thinks fit, the Registrar or the court may-decide that a person has used a trade mark if it is established that the person: (a) has used the trade mark with additions or alterations that do not substantially affect the identity of the trade mark; or (b) has used an associated trade mark. (3) If the registered owner of a registered trade mark (“first trade mark”) is also the registered owner of another registered trade mark that contains the first trade mark, the registered owner is taken, when he or she uses the other trade mark, to have also used the first trade mark. (4) The use of a trade mark by a person authorised to use the trade mark (see section 7) is taken, for the purposes of this Act, to be a use of the trade mark by the owner of the trade mark. Authorised use of trade mark 7.(1) The use of a trade mark by a person is an authorised use only if the person uses the trade mark under the control of the owner of the trade mark. Note: A person may bean authorised user of a trade mark even if the person is not a registered user of the trade mark. (2) If the owner of a trade mark exercises quality control over goods or services: (a) dealt with or provided by another person; and (b) in relation to which the trade mark is used; the trade mark is taken, for the purposes of subsection (1), to have been used by the other person under the control of the owner. This subsection does not, however, limit the meaning of the expression “under the control of” in subsection (1). Definition of “applied to” and “applied in relation to” 8.(1) For the purposes of this Act: (a) a representation of a trade mark is taken to be applied to any goods, material or thing if it is woven in, impressed on, worked into, or affixed or annexed to, the goods, material or thing; and (b) a representation of a trade mark is taken to be applied in relation to goods or services: (i) if it is applied to any covering, document, label, reel or thing in or with which the goods are, or are intended to be, dealt with or provided in the course of trade; or (ii) If it is used in a manner likely to lead persons to believe that it refers to, describes or designates the goods or services; and (c) a representation of a trade mark is taken also to be applied in relation to goods or services if it is used in: (i) a sign or advertisement, including a televised advertisement; or (ii) an invoice, wine list, catalogue, business letter, business paper, price list or other commercial document; and goods are delivered, or services provided (as the case maybe) to a person following a request or order made by referring to the trade mark as so used. (2) In subparagraph (1 )(b)(i): “covering” includes packaging, frame, wrapper, container, stopper, lid or cap; “label” includes a band or ticket. Definition of “deceptively similar” 9. For the purposes of this Act, a trade mark is taken to be deceptively similar to another trade mark if it so nearly resembles that other trade mark that it is likely to deceive or cause confusion. Associated trade marks 10.(1) If a trade mark that is registered, or whose registration is being sought, in the name of a person and in respect of particular goods: (a) is substantially identical with another trade mark that is registered, or whose registration is being sought, in the name of the same person and in respect of, (i) the same goods; or (ii) goods of the same description as those goods; or (iii) services that are closely related to those goods; or (b) so nearly resembles such a trade mark that the use of the first trade mark by another person would be likely to deceive or cause confusion; the 2 trade marks are associated trade marks. (2) If a trade mark that is registered, or whose registration is being sought, in the name of a person and in respect of particular services: (a) is substantially identical with another trade mark that is registered, or whose registration is being sought, in the name of the same person and in respect of: (i) the same services; or (ii) services of the same description as those services; or (iii) goods that are closely related to those services; or (b) so nearly resembles such a trade mark that the use of the first trade mark by another person would be likely to deceive or cause confusion; the 2 trade marks are associated trade marks. Abandonment of trade mark 11. A trade mark is abandoned if it has not been used for a continuous period of 3 years or more. Definition of “pending” 12.(1) An application for the registration of a trade mark under this Act is pending if it has not lapsed or been withdrawn and: (a) the Registrar has not yet made a decision about it under section 32; or (b) the Registrar has accepted it under subsection 32(3) but has not yet made a decision whether to register the trade mark or not under section 55. (2) An application for the registration of a trade mark under the repealed Act was pending immediately before the commencement of this Act if: (a) it had not lapsed or been withdrawn under the repealed Act; and (b) before the commencing day: (i) the Registrar had not made a decision about it under subsection 44(1) of that Act; or (ii) the Registrar had accepted it under that subsection but had not yet made a decision whether to register the trade mark or not under subsection 50(1) of that Act. Remove from the Register 13. A trade mark is taken to have been removed from the Register if the Registrar makes an entry in the Register to the effect that all particulars relating to the trade mark entered in the Register are taken to have been removed from the Register. Restore to the Register 14. A trade mark that has been removed from the Register is taken to be restored to the Register if the Registrar makes an entry in the Register to the effect that all particulars relating to the trade mark taken to have been removed from the Register are restored to the Register. Repealed Act 15.(1) The repealed Act means: (a) the Trade Marks Act 1955 as In force immediately before its repeal; and (b) the regulations under that Act as in force immediately before its repeal. Note: For the repeal of the Trade Marks Act 1955 see section 241. (2) In this Act, a reference to a particular section of the repealed Act includes a reference to the regulations made for the purposes of that section as in force immediately before that Act was repealed.