Non-Use Matters
Non-use of a trade mark is a legal basis to request the removal of a registered trade mark from the register if the named owner has not used it for its registered goods/services in the course of trade within the ‘relevant’ non use period..
A trade mark is vulnerable to removal on usual non-use grounds three years (from the date of entry to the register) for trade marks filed after 24 February 2019, while for older marks, it is five years (from the date of filing). This is the most common non-use removal type. The relevant non-use period is prescribed as being the three (3) years that ends a month before the removal application. For example, if a removal application is filed under these grounds on the 1 July 2025 the relevant three (3) year period is 1 June 2022 to 1 June 2025.
An application for non-use removal can also be made if the trade mark owner never had a good faith intention to use the mark at the time of applying for registration, and, has not since put it to use in good faith. This type of removal application can be filed any time after the trade mark has registered.
If a trade mark owner wants to defend a non-use request, they need to first oppose the removal application and ultimately provide evidence of genuine use in the relevant three (3) year period, or otherwise that they filed the application with the good faith intention to use the mark. Alternatively, if there has been no use, the owner should explain why the mark was not used. Some special circumstances beyond the owner’s control may be considered as a defence against non-use including import restrictions, government regulations, business restructuring and natural disasters that affected production. These reasons must be genuine and supported by evidence.
However, if non-use is simply a business decision, the trade mark could be vulnerable to removal.
How MMW can help with non-use matters
We can assist in filing requests to remove trade marks for non-use, plus our experienced team can handle any defence should such an application be made against your trade mark.
You can be confident that the professional team at MMW Trademark Services will meet the deadlines for any non-use matter so as to avoid compromising your position and prevent unnecessary delays or additional costs.
If you are challenged for non-use of your trade mark or believe you have grounds for requesting non-use removal of a trade mark, you should contact our qualified trade marks attorneys for advice and assistance on the appropriate course of action. We will achieve the best outcome for your business.
Our article on ‘Losing a Trade Mark Due to Non-Use in Australia’ provides more detail on this topic.
FAQs About Non-Use Matters
