Trade Marks Act 1905

Legislation au C1905A00020 Not in force Act

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TRADE MARKS.

 

No. 20 of 1905.

An Act relating to Trade Marks.

[Assented to 21st December, 1905.]

BE it enacted by the King’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, as follows:—

PART I.—INTRODUCTORY.

Short title.

1. This Act may be cited as the Trade Marks Act 1905.

Commencement

2. This Act shall commence on a day to be fixed by proclamation not less than four months after the passing of this Act.

Parts.

3. This Act is divided as follows:—

Part I.—Introductory.

Part II.—Administration.

Division 1.—The Minister, the Registrar, and the Trade Marks Office.

Division 2.—The Transfer of the Administration of the State Trade Marks Acts.

Part III.—Registrable Trade Marks.

Part IV.—Registration of Trade Marks.

Division 1.—General.

Division 2.—Applications.

Division 3.—Opposition.

Division 4.—Registration and Effect of Registration.

Division 5.—Renewal of Registration.

Part V.—Assignment of Trade Marks.

Part VI.—The Register of Trade Marks.

Part VII.—Workers’ Trade Marks.

Part VIII.—The Commonwealth Trade Mark.

Part IX.—Protection of Trade Marks.

Part X.—Miscellaneous.


Definitions.

4. In this Act, except where otherwise clearly intended—

“The Court” means the High Court or the Supreme Court of the State in which the Trade Marks Office is situate or a Justice thereof.

“The Law Officer” means the Attorney-General or Crown Solicitor of the Commonwealth.

“Person” includes a body corporate and a firm and any association of persons bodies corporate or firms.

“The Register” means the Register of Trade Marks under this Act.

“Registered Trade Mark” means a trade mark registered under this Act.

“The Registrar” means the Registrar of Trade Marks.

“State Trade Marks Act” means any State Act relating to the Registration of Trade Marks.

“This Act” includes all regulations made thereunder.

Application of common law.

5. Subject to this Act, or any Act of the Parliament, the common law of England relating to trade marks shall, after the commencement of this Act, apply throughout the Commonwealth.

Provided that this section shall not affect any right, privilege, obligation, or liability acquired, accrued, or incurred under the law of any State before the commencement of this Act.

State Trade Marks Acts to cease to apply to trade marks.

6. The State Trade Marks Acts of each State shall, on the commencement of this Act, cease to apply to trade marks further than as follows:—

(a) The State Trade Marks Act under which a trade mark is registered shall continue to apply to that trade mark so long as the registration under that Act remains in force.

Cf. Patents Act 1903, s. 6.

(b) Proceedings under a State Trade Marks Act, pending at the commencement of this Act, may be continued and completed under the State Trade Marks Act.

(c) Applications for the registration of trade marks may be received and dealt with under a State Trade Marks Act, if made by virtue of some right…

Overview

The Trade Marks Act 1905 was enacted to standardise trade mark registration procedures across Australia, replacing the various State-level trade mark laws that existed at the time. The Act was passed by the Commonwealth Parliament and assented to by the monarch on 21 December 1905. The problem it addressed was the lack of uniformity in trade mark registration and protection across the different States, which created legal uncertainties and potential conflicts of interest. The Act's policy objective was to establish a unified national framework for the registration, protection, and enforcement of trade marks, thereby facilitating interstate trade and protecting intellectual property rights.

Scope and Application

The Trade Marks Act 1905 applies to persons, bodies corporate, firms, and associations of such entities, who are engaged in commercial activities and wish to protect their trademarks. The Act has a national jurisdictional reach as it applies throughout the Commonwealth of Australia, thereby replacing the previously applicable State Trade Marks Acts. However, certain provisions allow for the continued application of State Trade Marks Acts under specific circumstances, such as for trade marks registered before the commencement of the Act. The Act does not apply to agricultural, viticultural, horticultural, dairying, and pastoral industries as per section 77. The Trade Marks Act 1905 extends its application through subordinate instruments, such as regulations made thereunder, as per section 4. The Act allows for the registration of trade marks that consist of essential particulars with or without additional matter, as per sections 15 to 17. The registration process is detailed in Part IV of the Act, including applications, opposition, and the effect of registration. The Act also addresses the assignment, transmission, and protection of trade marks, as well as the establishment of a Register of Trade Marks. Furthermore, the Act provides for the registration and protection of workers' trade marks, as well as the establishment and protection of the Commonwealth trade mark. The Act also includes provisions for the protection against forgery or false application of trade marks, and the prohibition of the importation of goods with false marks.

Key Provisions

  • The Trade Marks Act 1905 establishes a framework for the registration and protection of trade marks in Australia. It includes key provisions regarding registrable trade marks, the application process, and the rights and obligations of trade mark owners. Section 15 outlines the essential particulars that must be included in a registrable trade mark, such as names, signatures, devices, or invented words. Section 16 further clarifies that additional matter can be added to the essential particulars, such as letters, words, or figures. Section 23 details the process for registering a trade mark, including the requirement to specify the goods or class of goods for which the trade mark is intended. The Act also provides for the protection of trade marks from infringement. Section 53 defines infringement as the use of a mark substantially identical with or so nearly resembling a registered trade mark as to be likely to deceive. Section 86 outlines various offences related to the forgery or false application of registered trade marks, with penalties including imprisonment and fines. Section 87 further addresses the sale or possession of goods with false trade marks, also imposing penalties. The Act also includes provisions for the administration of trade marks. Section 10 establishes the role of the Minister for Trade and Customs in executing the Act, while Section 11 outlines the duties of the Registrar of Trade Marks. Section 12 establishes the Trade Marks Office, and Section 13 provides for the use of a seal for the office. Additionally, the Act contains provisions for international arrangements for the protection of trade marks. Section 115 allows for the application of laws from the United Kingdom or foreign states for the mutual protection of trade marks, provided certain conditions are met. Section 116 extends these provisions to British possessions that have made satisfactory provisions for the protection of trade marks registered in Australia. Overall, the Trade Marks Act 1905 provides a comprehensive framework for the registration, protection, and administration of trade marks in Australia. It sets out the requirements for registrable trade marks, the application process, and the rights and obligations of trade mark owners, as well as provisions for the protection of trade marks from infringement and the administration of the trade marks system.

Legal classification tags

Area of Law
Intellectual Property Law
Commercial Law
Instrument
Act
Concepts
Definitions & Interpretation
Commencement Provisions
Registrable Trade Marks
Regulatory Standards
Registration of Trade Marks
Prohibited Conduct
Infringement

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.