One Federal Court decision clarifies what is considered as “authorised use” of a trade mark wherein the trade mark user is not the trade mark owner but a subsidiary of the owner’s company.
Trade Mark Eligibility
Protection through trade mark registration can only be obtained if the applicant is eligible to own a trade mark. Trade mark registration can be contested and invalidated on account of ineligibility of the trade mark applicant.
Who can own trade marks in Australia?
In Australia, any individual, company, incorporated association or a combination can own a trade mark. The applicant needs an Australia or New Zealand address for service. For International Registrations Designating Australia (IRDAs), which are submitted by foreign entities through the Madrid protocol, the address of service is that of the agent acting on behalf of the applicant, that is, a trade mark attorney or solicitor.
In addition, the applicant must not be a trade or business name, and the name should be that of the person as reflected in the business registration. A trust can own a trade mark, but the applicant should indicate the name of the trustee and not the trust name. For trade marks owned by corporations, the applicant should be the corporation name and not the directors or shareholders.