The Australian Trade Mark law has recently undergone some changes, the most significant of which is an amendment to the time period before which a trade mark registration can be challenged for non-use.
Under the old system in Australia, an application to cancel a trade mark registration on grounds of non-use could be made 5 years from the filing date of the trade mark application. The new law brings the practice more into line with the practice of the majority of trade mark offices around the world – the non-use period is now calculated from the date of entry of the registration details on the trade mark register – upon registration of the mark. However, the new non-use period is only 3 years. This differs from the 5-year period applicable in most trade mark jurisdictions.
The change came into effect on 24 February 2019 and applies to trade marks filed on or after this date. The old system continues to apply to trade marks filed on or before 23 February 2019.
Since straightforward trade mark applications tend to proceed to registration within 6 months in Australia, the amendment to the non-use time period is quite significant. Of course, non-use during that 3-year period does not mean that a registration will be cancelled at the end of the period, only that it is open to challenge. However, with trade mark registers becoming increasingly crowded and the non-use period being shortened, more applicants are likely to take advantage of this provision of the law to provide them with a clear path to use and registration of their marks.
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