Anyone can apply for an Australian trade mark registration to be removed or partially removed from the Register if the owner fails to use the trade mark in relation to the goods or services for which it is registered. There are two grounds for non-use removal applications: no intention to use, and 3 years’ continuous non-use.
A trade mark registration can be removed or partially removed for non-use at any time if it can be proved that the owner had no intention to use the trade mark at the time the registration was applied for, and has since not used the trade mark, in relation to the goods or services to which the non-use removal application relates. However, this ground of removal is not used very often because it is difficult to prove a trade mark owner’s lack of intention to use. If someone applies for trade mark registration, that is normally a good indication that the person does intend to use the trade mark.
The second removal ground is three years’ continuous non-use. Five years must have passed since the application date of the registered trade mark before a removal application on this ground can be filed. The three-year period under consideration is the period of three years ending one month before the date of the removal application. To defeat the removal application, a very small amount of use will usually be sufficient.
Trade mark owners often register their trade marks for a broader range of goods and services than those in respect of which they actually use their trade marks. Thus, many registrations become vulnerable after 5 years to partial removal in respect of the goods or services for which the trade mark has not actually been used.