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Amendments to Trademark Laws

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Nov 19, 2012 (Newsletter Issue 17/12)
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Amendments to Trade Mark Act

The Intellectual Property Laws Amendment (Raising the Bar) Bill received Royal Assent from the Governor General on 15 April 2012.

The amendments relating to the Trade Marks Act 1995 will come into effect on 15 April 2013. Some of the changes are:

1) Oppositions
- An applicant will be required to file a Notice of Intention to Defend an opposition to registration.
- An opposed application will lapse if a Notice of Intention to Defend an opposition is not filed
- An extension of time will be available to file the Notice of Intention to Defend
- New Section 231(3) will allow the Trade Mark Regulations to be amended to prescribe matters relating to trade mark oppositions including: a) Rules about filing and serving documents in an opposition; b) Rules about the amendment of documents filed in an opposition; c) The circumstances in which the Registrar may dismiss an opposition under the new Section 99A; and d) Provision for review by the Administrative Appeals Tribunal of decisions of the Registrar made under the regulations.
- A decision of a delegate of the Registrar in opposition proceedings may be appealed to the Federal Magistrate's Court.

2) Infringement of registered trade marks
Section 126 has been amended to allow for the award of additional damages in trade mark infringement matters taking into account matters including:
- The flagrancy of the infringement;
- The need to deter similar infringements of registered trade marks; and
- The conduct of the party that infringed the registered trade mark that occurred.

3) Penalties
The penalties for offences relating to misuse of trade marks, including falsifying or removing registered trade marks, falsely applying registered trade marks, and possessing or selling goods with false trade marks, have been increased.

There have been changes to Customs Procedures as well.

Source: Spruson & Ferguson, Australia