Use-based rights: perspectives on achieving registration in Australia

By Lena Balakrishnan and Kimberley Evans

Section 58A of Australia’s Trademarks Act 1995 provides a basis for opponents to challenge the registration of trademarks accepted under prior continuous use. However, recent decisions indicate a shift away from a literal interpretation of this

Section 58A of Australia’s Trademarks Act 1995 provides a basis for opponents to challenge the registration of trademarks accepted under prior continuous use on the basis that the opponent has prior use of a conflicting mark. Recent decisions indicate a shift from a literal interpretation of this section towards a so-called ‘purposive approach’. But is the registrar’s practice correct?

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