In Australia establishing honest concurrent use is a time-consuming process. Generally, advertising expenditure and sales data must be provided together with photographs of products and screenshots of websites. The advertising expenditure and sales data must span a number of years.
Establishing prior use is often much easier as it is only the mark, date, and goods/services that are relevant.
When considering honest concurrent use, the Australian Trade Mark Office will give weight to a number of factors, including:
1) the degree of confusion likely between the trade marks in question;
2) whether instances of confusion have in fact occurred;
3) the honesty or otherwise of the concurrent use;
4) the extent of use in duration, area and volume; and
5) the relative inconvenience that would be caused to the respective parties if the applicant’s trade mark should be registered or not registered.
For reasons of confidentiality, we cannot provide examples of the declarations that we have prepared for our clients. The US Trade Mark database does, however, make most trade mark filing information available online. The Australian Trade Mark database does not.
We have provided some examples from the US Trade Mark database below. In Australia the extent of use required is often much less than that required in the United States. This is due to the size of the market as well as several other considerations.
*As with all information provided by this website, the content of this webpage is subject to our disclaimer. The material provided is not to be relied upon under any circumstances.