The recent case of Health World Ltd v Shin-Sun Australia Pty Ltd [2010] HCA 13 has expanded who can remove Trade Marks under the Australian system.
Under our Trade Marks statute only a 'person aggrieved' can apply to remove a Trade Mark. Traditionally, this has been an onerous test which did not necessarily include trade rivals wishing to use a mark.
Our High Court emphasised the needs to ensure the purity of the register may be paramount, and the person aggrieved should be interpreted liberally rather than restrictively, with some limits so as to discourage "applications for rectification or removal by busybodies or common informers or strangers proceeding wantonly or persons without any interest in the Register or the functions it serves beyond gratifying an intellectual concern or reflecting merely sentimental motives. Applications of that kind, by clogging up and causing delay in the courts, would cause an unnecessary cloud to hang over registrations."
As a consequence, it is likely that applications for removal by legitimate rivals are likely to be viewed in a favourable light as the hurdle of being an aggrieved person has been diminished.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
