-- JonathanMo - 14 Sep 2015

'Used or intended to be used'

Under section17 of the TMA, the sign must be 'used or intended to be used' in the trade. Registering a mark in order to provide de facto protection for an unregistrable one, known as 'ghost marking', is not permissible since there is no intention to use the registered mark as required by the Act. Similarly, it is not permissible under the Act to use trade marks in order to preempt competitors entering a particular market, or to 'stockpile' them in order to sell them off to manufacturers. See Holly Hobbie Trade Mark (1984) 1 IPR 486. However, the old rule against 'trafficking' no longer exists in the TMA.

Cases under the old legislation also indicated that the use must be bona fide commercial use: see Imperial Group Ltd v Phillip Morris and Co Ltd (1980) FSR 146.