Evidence of use

You intend to use your trade mark

If you have not yet made use of your trade mark, evidence of intended use should include:

  • Business plans, pre-launch market research, product launch plans and/or other documents demonstrating a definite intention to use the trade mark;
  • The goods/services the plan relates to;
  • Figures in AUD for any costs already incurred in preparing to use the trade mark.

Declaration

Evidence must be lodged with IP Australia on an approved declaration form (which can be downloaded here) and should include examples of products bearing the trade mark. The examples should be clear, digital images attached to your declaration.

Evidence of Prior Use

To overcome an objection under Section 44(4), you’ll need to submit a declaration to IP Australia showing that you used your trade mark before the date that the cited trade mark owner did, and that your use has been continuous up to the filing of your application. Examples of your use should also be submitted with the declaration.

Honest Concurrent Use

To overcome an objection under Section 44(3)(a), you’ll need to submit a declaration to IP Australia showing the honest use of your trade mark and that you used your trade mark in Australia before the filing of your application. Examples of your use should also be submitted with the declaration.

Capable of Distinguishing

To overcome an objection under Section 41(3) or Section 41(4), you’ll need to submit a declaration to IP Australia showing that you’ve used your trade mark in a way that’s capable of distinguishing your goods or services from other traders.
This may be that your trade mark acts as a badge of origin, and is well known to consumers that the trade mark is associated to you.

 

Will my evidence be confidential?

All letters are open for public inspection. Copies of declarations may be requested under the Freedom of Information Act. If a request is made by the public IP Australia generally seeks your approval before releasing the declaration.

 

If you believe that you need to provide evidence of use in order to overcome an objection against your trade mark, it’s best to get in touch and we can assist you in preparing quality evidence.