Trade Marks Amendment (International Registrations, Hearings and Oppositions) Regulations 2025

EXPLANATORY STATEMENT

Issued by the Authority of the Minister for Industry and Innovation

Trade Marks Act 1995

The Trade Marks Amendment (International Registrations, Hearings and Oppositions) Regulations 2025 (the Regulations) amend the Trade Marks Regulations 1995 (Trade Marks Regulations) to ensure Australia complies with international obligations and make minor improvements and simplifications to trade mark processes.

Legislative Authority

Paragraph 231(1)(a) of the Trade Marks Act 1995 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed.

Changes to regulations in Part 17A of the Trade Marks Regulations derive their authority from subsection 189A(1) of the Act, which allows regulations to provide for matters necessary to enable the performance of obligations under the Madrid Protocol. The Protocol Relating to the Madrid Agreement concerning the International Registration of Marks (referred to in the Act as the Madrid Protocol) is an international agreement which provides for a system of international trade mark registrations. The Madrid Protocol leaves several matters to be resolved within the domestic law of each party, including identifying the circumstances in which applications will and will not be approved. The amendments in Schedule 3 to the Regulations are thus incidental to the implementations of Australia’s obligations under the Madrid Protocol.

The Act specifies no conditions that must be met before the power to make regulations may be exercised.

The Regulations are a legislative instrument for the purposes of the Legislation Act 2003 (Legislation Act).

Purpose of the Regulations

The Regulations amend the Trade Marks Regulations to make minor updates and improvements which maintain consistency with international requirements and simplify some dispute processes. This includes updating Australia’s trade marks system to reflect changes to the international Madrid Regulations, which are the Regulations under the Madrid Protocol. The changes contribute to Government efforts to bolster productivity growth through regulatory simplification. By streamlining government processes we can reduce burdens on businesses.

The Regulations amend the Trade Marks Regulations to:

provide a two-month period to file a notice of intention to defend an opposition

permit partial replacement of an Australian trade mark registration by a protected international trade mark

provide specific grounds to refuse protection of international trade marks in Australia based on the Australian sanctions regime

clarify the Registrar’s power to revoke acceptance of international registrations designating Australia

allow deferment of the time period for acceptance of a trade mark (or protection of an International Registration Designating Australia) when a hearing is requested

make minor technical terminology changes.

Details of the amendments can be found in Attachment A.

Consultation

Public consultation on an exposure draft of these changes occurred between 15 and 29 September 2025. Submissions were received from a peak body representing registered patent and trade marks attorneys and a high-volume patent and trade marks attorney firm. Both submissions supported the changes, except for one item which has been removed for further policy analysis. Both provided minor feedback suggesting that the change to deferment when a hearing is requested, should also apply retrospectively to hearings which have already been requested at time of commencement. IP Australia considers this would be of little practical benefit to users of the system, so it would not be appropriate.

The Department of Foreign Affairs and Trade (Australian Sanctions Office; International IP Section; Trade Law Branch) was consulted on the amendments based on the Australian sanctions regime.

The Department of Industry, Science and Resources (Trade & International Branch; IP Policy & Commercialisation Capability Hub), the Attorney-General’s Department (Human Rights Unit) and the Department of Prime Minister and Cabinet were also consulted.

Disallowance and Sunsetting

The Regulations are a disallowable legislative instrument for the purposes of the Legislation Act.

Sunsetting Exemption

The Regulations are exempt from sunsetting by virtue of paragraph 54(2)(b) of the Legislation Act, and table item 63A in regulation 12 of the Legislation (Exemptions and Other Matters) Regulation 2015:

Table item 63A exempts from sunsetting a regulation made under the Act.

The Regulations are made made under the Act, as are the Trade Marks Regulations which the Regulations amend.

The above table item was inserted, with effect from 29 August 2017, by item 15 in Schedule 1 to the Legislation (Exemptions and Other Matters) Amendment (Sunsetting Exemptions) Regulations 2017 (2017 Amendment Regulations).

The Act, and regulations made under the Act, are exempt from sunsetting to provide a stable and predictable regulatory environment for intellectual property (IP) rights. This allows businesses to make commercial decisions with confidence and recoup their long-term investments in innovation.

IP rights often last much longer than the 10-year sunsetting period, in particular trade mark registrations can be held in perpetuity, with over a third of Australian trade marks held for 20 years or longer. The possibility that the regulations underpinning the IP rights system could sunset during this time exposes investors and businesses to significant uncertainty. More information on this can be found in the notes in the Explanatory Statement on item 15 in Schedule 1 to the 2017 Amendment Regulations.

Statement of compatibility with human rights

Subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 requires the rule-maker in relation to a legislative instrument to which section 42 (disallowance) of the Legislation Act applies to cause a statement of compatibility to be prepared in respect of that legislative instrument. A statement of compatibility to meet that requirement is at Attachment B.

Attachment A

Details of the Trade Marks Amendment (International Registrations,
Hearings and Oppositions) Regulations 2025

Section 1 - Name of Regulations

This section identifies the instrument as the Trade Marks Amendment (International Registrations, Hearings and Oppositions) Regulations 2025.

Section 2 - Commencement

This section provides for Schedules 2, 3, 4, 6 and 7 to commence the day after registration, and Schedules 1 and 5 to commence the day after the end of the period of one month beginning on the day of registration.

Section 3 - Authority

This section provides that the Trade Marks Amendment (International Registrations, Hearings and Oppositions) Regulations 2025 is made under the Trade Marks Act 1995.

Section 4 - Schedule(s)

This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1 - Increased period for filing of notice of intention to defend

This Schedule to the Trade Marks Amendment (International Registrations, Hearings and Oppositions) Regulations 2025 (the Regulations) amends the Trade Marks Regulations 1995 to increase the period for filing a notice of intention to defend an opposition (NID) from one month to 2 months. It also updates the definition of the expression ‘Madrid Regulations’ to refer to the current version of the international instrument.

The Madrid Regulations are the Regulations under the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (the Madrid Protocol). They govern the procedures under the ‘Madrid System’ for the international registration of trade marks and the extension of protection to international registrations designating Contracting Parties. Australia is a Contracting Party.

The current version of the Madrid Regulations is that in force on 1 November 2024. Its text can be found on the website of the World Intellectual Property Organization at <www.wipo.int>.

International registrations designating Australia are called IRDAs. If the IRDA is accepted and no issues are raised during the oppositions period, the trade mark that is the subject of an IRDA becomes a protected international trade mark.

Part 17A of the Trade Marks Regulations governs the extension of protection to trade marks which are the subject of an IRDA (sometimes referred to simply as ‘protection of an IRDA’) as well as the amendment and cessation of protected international trade marks.

Items [1, 2, 5 and 6]

Filing an NID is an important step in trade mark oppositions. Failing to file the NID in time can mean the end of an opposition process. What this looks like will differ depending on the opposition process in question.

For oppositions to the acceptance of a trade mark application or extension of protection to an IRDA, this can mean the end of the process for obtaining trade mark protection in Australia.

For oppositions to applications to remove a registered trade mark or cease protection of a protected international trade mark for non-use, failure by the applicant to file an NID can result in the failure of the non-use application – leaving the registered trade mark or protected international trade mark unaffected.

Under rule 17(2)(vii) of the Madrid Regulations, Australia is required to give the holder of an IRDA at least 2 months to respond to an opposition to extension of protection. Accordingly, item 5 amends subregulation 17A.34H(1) of the Trade Marks Regulations to allow the holder of an IRDA 2 months to file an NID in an opposition to extension of protection.

Item 1 amends subregulation 5.13(1) of the Trade Marks Regulations to allow the applicant for registration of a trade mark (the domestic equivalent of an IRDA) 2 months to file an NID in an opposition to registration. Although not required by the Madrid Regulations, this ensures that an applicant for registration of a trade mark receives the same treatment as the holder of an IRDA.

Items 2 and 6 amend subregulations 9.15(1) and 17A.48Q(1) of the Trade Marks Regulations respectively, to extend the time for filing an NID in an opposition to a non-use application. This too is not required by the Madrid Regulations. Nevertheless, non-use applications can substantially affect trade mark rights in Australia. As such, IP Australia considers it appropriate that the same period for filing an NID should apply in oppositions to non-use applications as applies to protecting trade marks in Australia. Amending these subregulations ensures the same treatment of the non-use applicant, whether the application is for removal of a registered trade mark or is for cessation of protection of a protected international trade mark.

Items [3 and 4] – Clause 1 of Schedule 9 (table item 12, column headed “Matter”)

The expression ‘Madrid Regulations’ is defined in regulation 17A.2 for the purposes of Part 17A of the Trade Marks Regulations. That definition is no longer up-to-date, as it refers to the Madrid Regulations as in force for Australia on 1 October 2020.

Item 3 updates that definition to refer to the Madrid Regulations as in force for Australia on 1 November 2024. This is the current version of the Madrid Regulations, that is the Regulations under the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks. Its text can be found on the website of the World Intellectual Property Organization at <www.wipo.int>.

Item 4 updates the Note 1 following the definition. The updated Note 1 advises the reader that the current version of the Madrid Regulations can be viewed on the website of the World Intellectual Property Organization as of this year. Previous versions of the Madrid Regulations have been viewable on that website and remain so. The updated Note 1 also updates the formatting of the web address for stylistic consistency with other website references in the Trade Marks Regulations.

Schedule 2 – Relationship between registered trade marks and protected international trade marks

This Schedule amends the Trade Marks Regulations to make provision for ‘partial’ replacement of national trade mark registrations (registered trade marks) by protected international trade marks.

The Madrid Protocol article 4bis requires that Australian law permits national registrations to be ‘replaced’ by a protected international trade mark in certain circumstances. The Madrid Regulations rule 21 sets out these requirements in more detail.

Replacement is implemented in Trade Marks Regulations Part 17A Division 8. Prior to amendment, one of the prerequisites for replacement in paragraph 17A.54(1)(c) was that all the goods and services covered by the registered trade mark must be covered by the protected international trade mark. This is called full replacement.

Amendments to the Madrid Regulations rule 21, effective 1 November 2021, require that Contracting Parties permit a national trade mark registration to be partially replaced by a protected international trade mark. Partial replacement means that only some of the goods and services covered by the registered trade mark need be covered by the protected international trade mark.

The Schedule implements this requirement, makes consequential amendments, and also clarifies the provisions on replacement.

Item [1] – At the end of regulation 17A.4

This item adds a new subregulation (3) to regulation 17A.4 to clarify that the definition of ‘date of effect’ is subject to the replacement provisions in regulation 17A.54.

This amendment is intended to assist in the readability of the Trade Marks Regulations, by indicating clearly in the main definition of ‘date of effect’ that it is subject to regulation 17A.54.

Item [2] – Paragraph 17A.54(1)(c)

This item amends paragraph 17A.54(1)(c) to allow for partial replacement. In particular, it will no longer be a requirement that, to be replaced, all the goods and services of a registered trade mark must be covered by a protected international trade mark. Instead, it will be sufficient that some or all of the goods or services of a registered trade mark are covered by the protected international trade mark.

When only some goods or services of the registered trade mark are covered by the protected international trade mark, the goods and services not covered by the protected international trade mark will not be replaced. If the national trade mark registration is not renewed, those goods and services will cease to be protected.

Item [3] – Subregulations 17A.54(2) and (3)

This item replaces subregulations 17A.54(2) and (3) with new subregulations 17A.54(2) and (3), to clarify the effect of replacement, particularly where some goods or services in the registered trade mark have different dates of registration, or if the protected international trade mark happens to have an earlier date of effect than the registered trade mark.

New subregulation 17A.54(2) provides that, for particular goods or services covered by both the registered trade mark and the protected international trade mark, the date of effect is taken to be the date of registration of the registered trade mark in respect of those goods or services.

Unlike the previous subregulation 17A.54(3), new regulation 17A.54 does not refer to the priority date of the protected international trade mark. This is because, under subregulation 17A.3(2), the priority date for a protected international trade mark in respect of particular goods and services is simply its date of effect in respect of those goods and services. Adjusting the date of effect is therefore sufficient to adjust the priority date.

New subregulation 17A.54(3) provides that the date of effect will not be adjusted if, for particular goods and services, the date of effect under subregulation 17A.54(2) is later than the relevant date of effect before replacement, that is the date given by subregulations 17A.4(1) or (2). This is to clarify that replacement should never result in a later date of effect for the protected international trade mark.

While improbable, it is possible for a registered trade mark to become a protected international trade mark in circumstances where the protected international trade mark has an earlier date of effect than the national trade mark’s registration date. This is because the timeframes from notification to protection of an IRDA, and from filing to registration of a national trade mark, are variable. Where this occurs and the protected international trade mark is entitled to an earlier date of effect under subregulations 17A.4(1) or (2), replacement should not occur.

Item [4] – Regulation 17A.55

This item replaces regulation 17A.55 to indicate the effect of cancellation, removal or expiry of the national trade mark registration, given the possibility of partial replacement.

New subregulations 17A.55(1), (3) and (5) set out circumstances where replacement will be ceased and the original date of effect will be restored. New subregulations 17A.55(2), (4) and (6) set out exceptions, that is cases where replacement will not be ceased despite the usual operation of (1), (3) and (5).

The effect is that a voluntary choice by the owner will not lead to the ceasing of the effect of replacement, while a mandatory action by a Court or the Registrar will lead to the ceasing of this effect. The overall impact is the same as the replaced regulation 17A.55, with more explicit provisions given the complex circumstances that can arise due to partial replacement.

In the event of cancellation

New subregulation 17A.55(1) means that amended subregulation 17A.54(2) will cease to apply if the registered trade mark is cancelled (for example, by a Court under paragraph 88(1)(a) of the Trade Marks Act).

However, new subregulation 17A.55(2) means new subregulation 17A.54(2) will continue to apply if the cancellation is at the request of the registered owner (for example, under section 84 of the Trade Marks Act).

This ensures that the holder is able to cancel the replaced registered trade mark, and keep only the protected international trade mark. The holder would then only need to pay renewal fees for the protected international trade mark.

In the event of removal

New subregulation 17A.55(3) means that amended subregulation 17A.54(2) will cease to apply in respect of particular goods or services if the registered trade mark is removed from the Register of Trade Marks (the Register) for those goods or services (for example, after a removal for non-use under Part 9 of the Trade Marks Act).

However, new subregulation 17A.55(4) means amended subregulation 17A.54(2) will continue to apply if the removal is under paragraph 78(b) or 80F(b) of the Trade Marks Act, that is as a result of the expiry of the trade mark if it is not renewed by the owner.

This ensures that the holder is able to let the replaced registered trade mark expire and then be removed from the Register, and keep only the protected international trade mark. The holder would then only need to pay renewal fees for the protected international trade mark.

In the event of amendment or correction

New subregulation 17A.55(5) means that amended subregulation 17A.54(2) will cease to apply in respect of particular goods or services if an entry in the Register is amended or corrected such that the trade mark is no longer registered in respect of those goods or services. (For example, this might happen as the result of a Court order under paragraph 88(1)(b) of the Trade Marks Act).

New subregulation 17A.55(6) means amended subregulation 17A.54(2) will continue to apply if the amendment is at the request of the owner (for example, under section 83 of the Trade Marks Act).

This ensures that, where a registered trade mark has been partially replaced by a protected international trade mark, the owner can amend the trade mark registration so that it no longer covers the replaced goods or services. In some cases, this may provide cost efficiencies when renewing the registered trade mark.

Schedule 3 – Rejecting IRDA on basis of sanctions regime

This Schedule amends the Trade Marks Regulations to introduce a new ground for rejecting an IRDA if its protection would result in an asset being made directly or indirectly available to, or for the benefit of, a person or entity to whom assets must not be made available under the Autonomous Sanctions Act 2011, the Charter of the United Nations Act 1945, or their regulations (the ‘sanctions laws’).

This provides an express power to refuse protection of an IRDA in circumstances where protection would be inconsistent with the intent of the sanctions laws. A specific ground for rejection is required because, unless the Registrar has notified the International Bureau, which administers the Madrid System, of a provisional refusal or that late oppositions may be possible, IRDAs are automatically protected by operation of law 18 months after their notification to Australia. (This is a requirement of the Madrid Protocol and reflected in subregulation 17A.36(5).) By providing a ground for rejecting an IRDA in these circumstances, a provisional refusal can be issued, which in turn ensures that the IRDA is not protected automatically.

A similar power is not needed for directly filed national trade mark applications, which do not automatically proceed to registration by operation of law. Instead, the Registrar must ordinarily register these directly filed trade mark applications only when they have been positively accepted for registration and have not been opposed (or if an opposition was unsuccessful). In these cases, the effect of the sanctions laws is that the Registrar has no power to register a trade mark where such registration would contravene those sanctions laws (Autonomous Sanctions Act sections 12 and 13, Charter of the United Nations Act sections 9 and 10). The sanctions laws therefore prevent registration of a national trade mark whose registration would contravene sanctions. Because IRDAs are protected automatically by operation of law (rather than by action of the Registrar), the sanctions laws do not prevent protection of an IRDA in the same way.

The addition of this new ground for rejecting an IRDA has the effect of bringing the outcomes for IRDAs in line with those for national trade mark applications in similar circumstances.

Item [1] – At the end of subregulations 17A.24(1) and (3)

This item adds a note clarifying that the grounds for rejecting an IRDA are set out in regulation 17A.28, which includes the new ground for rejection.

Item [2] – Subregulation 17A.28(1)

This item replaces subregulation 17A.28(1) to clarify that the grounds for rejecting an IRDA include sections 39-44 of the Trade Marks Act, as affected by subregulation 17A.28(2).

Item [3] – After subregulation 17A.28(2)

This item adds subregulation 17A.28(2A), which introduces a new ground for rejecting an IRDA.

New paragraph 17A.28(2A)(a) provides that there is a ground for rejecting an IRDA if protection would result in an asset (within the meaning of the Autonomous Sanctions Act) being made directly or indirectly available to, or for the benefit of, a designated person or entity (within the meaning of the Autonomous Sanctions Regulations 2011), other than in accordance with a permit granted under those regulations. Otherwise, the conferral of the protection could engage the prohibition in regulation 14 of the Autonomous Sanctions Regulations.

New paragraph 17A.28(2A)(b) provides that there is a ground for rejecting an IRDA if protection would result in an asset (within the meaning of the Charter of the United Nations Act) being made directly or indirectly available to, or for the benefit of, a person or entity prescribed by regulations made for the purposes of Part 3 of that Act, other than in accordance with a permit issued under those regulations.

Part 3 of the Charter of the United Nations Act gives effect to decisions of the United Nations Security Council made under Chapter VII of the Charter of the United Nations that Australia is required to carry out, and which relate to sanctions. This is achieved through regulations made for the purposes of that Part.

These sanction frameworks generally prohibit a person from directly or indirectly making an asset available to, or for the benefit of, a designated person or entity, which usually includes persons or entities designated by the Security Council or a Committee established under a resolution of the Security Council. However, some frameworks extend the prohibition to other persons and entities, including persons or entities acting on behalf of or at the direction of a designated person or entity, and an entity that is owned or controlled by a person or entity acting on behalf of or at the direction of a designated person or entity (see for example, paragraph 12(2)(a) of the Charter of the United Nations (Sanctions – Democratic People’s Republic of Korea) Regulations 2008).

Use of the expression ‘a person or entity prescribed by regulations’ in new paragraph 17A.28(2A)(b) is intended to capture the extended range of persons or entities to whom an asset may not be made available under regulations made for the purposes of Part 3 of the Charter of the United Nations Act, beyond solely designated persons and entities. All such persons or entities are intended to be covered by the expression ‘a person or entity prescribed by regulations’.

New paragraph 17A.28A(2A)(b) is intended to apply when protection would result in making an asset available to persons or entities prescribed under regulations implementing Part 3 of the Charter of the United Nations, including for example:

a designated person or entity
a person or entity acting on behalf of or at the direction of a designated person or entity
an entity owned or controlled by a designated person or entity.

New paragraph 17A.28(2A)(c) provides that there is a ground for rejecting an IRDA if protection would result in an asset (within the meaning of the Charter of the United Nations Act) being made directly or indirectly available to, or for the benefit of, a proscribed person or entity (within the meaning of Part 4 of that Act), other than in accordance with a notice under section 22 of that Act. Otherwise, the conferral of the protection could engage the prohibition in section 21 of the Charter of the United Nations Act.

Exemptions in the form of a permit or notice may permit assets to be made available to persons or entities when this would otherwise be prohibited by the Autonomous Sanctions Act, Charter of the United Nations Act, or their regulations. For each of the new paragraphs 17A.28(2A)(a)-(c), the ground for rejection will not apply if the applicable permit or notice has been obtained.

Item [4] –  Before subregulation 17A.28(3)

This item adds a subheading for clarity.

Schedule 4 – Registrar’s power to revoke acceptance of IRDA

This Schedule would amend the Trade Marks Regulations so that an IRDA will not become a protected international trade mark if the Registrar has issued a notice of intention to revoke its acceptance.

Regulation 17A.27 provides that the Registrar may revoke the acceptance of an IRDA before the IRDA becomes a protected international trade mark. This can occur if the Registrar becomes satisfied that the IRDA should not have been accepted and it is reasonable to revoke, taking into account all the circumstances. When acceptance is revoked, an IRDA is taken never to have been accepted.

Where the Registrar considers that an IRDA’s acceptance should possibly be revoked, the Registrar notifies a holder of an IRDA of their intention to revoke the acceptance of the IRDA. This is to allow the holder to make representations in response to this notification, so that the Registrar is properly informed before making the final decision on whether or not to revoke.

Under regulation 17A.36, an IRDA which has been accepted is automatically protected if no party opposes its acceptance and the opposition period (or that period as extended) has expired. Revoking the IRDA’s acceptance interrupts this process, as the IRDA is taken never to have been accepted. (The IRDA is then examined again, with the likely outcome that a provisional refusal of the IRDA is issued.) However, notifying the holder of an intention to revoke acceptance does not currently interrupt this automatic process.

The changes in this Schedule mean that once the Registrar notifies that they may revoke acceptance, the IRDA will not automatically become protected while the Registrar considers their decision. This will allow appropriate time for the holder to make representations, and for the Registrar to consider those representations, before making any revocation decision.

The changes are still subject to the 18-month backstop which operates due to subregulation 17A.36(5). This subregulation gives effect to Australia’s obligation to notify certain objections to the International Bureau within 18 months of the notification of an IRDA. Irrespective of the amendments made by this Schedule, if the conditions in subregulation 17A.36(5) are met, an IRDA will become protected.

Item [1] – At the end of subregulation 17A.36(2)

This item amends subregulation 17A.36(2) to indicate it has effect subject to new subregulation 17A.36(2AA).

Subregulation 17A.36(2) provides that if the Registrar accepts an IRDA, the IRDA becomes a protected international trade mark at the end of the opposition period if no notice of intention to oppose the IRDA is filed, or if a notice of intention to oppose is filed but a statement of grounds and particulars is not filed (subparagraphs 17A.36(2)(b)(i) and (ii)).

This item clarifies that this provision is now subject to new subregulation 17A.36(2AA).

Item [2] – After subregulation 17A.36(2)

This item inserts new subregulation 17A.36(2AA), to provide for the circumstances when an IRDA becomes a protected international trade mark after the Registrar has notified the holder of the IRDA of the intention to revoke acceptance.

The new subregulation applies when either subparagraphs (2)(b)(i) or (ii) apply (so either no notice of intention to oppose has been filed, or a notice of intention was filed but no statement of grounds and particulars has been filed) and the Registrar has notified the holder of the IRDA of the intention to revoke acceptance, but the final decision regarding the revocation has not been made.

The new subregulation provides that, in those scenarios, the IRDA will not become a protected international trade mark at the end of the opposition period. This will allow the process of revocation to take its course.

The IRDA will, however, become a protected international trade mark as soon as the Registrar makes a decision not to revoke acceptance. If the Registrar instead decides to revoke acceptance, the IRDA is taken never to have been accepted, due to subregulation 17A.27(2).

The new subregulation does not override the default provisions in subregulation 17A.36(5), which may still result in an IRDA being automatically protected 18 months after notification in some circumstances, even if a notice of intention to revoke acceptance has been issued.

Schedule 5 – Extending period for examining trade mark applications where a hearing is requested

This Schedule amends the Trade Marks Regulations so that an applicant or holder does not need to request an extension of time to cover the period for examining trade mark applications or IRDAs, after a hearing is requested. This is done with a view to simplifying processes and minimising costs and administrative burdens.

The new provisions provide a new ground for deferment of acceptance due to the applicant or holder requesting a hearing. Deferment of acceptance effectively pauses the deadline after which, if examination of a trade mark application is not completed, an application will lapse (or the examination period for an IRDA will end). Under this new ground, deferment will end when the Registrar decides to accept or reject the application after the hearing, or if the applicant withdraws their request to be heard; whichever comes first.

There is no prescribed time limit for how long an application can be deferred under this new ground. This is because there is no prescribed time limit for the Registrar to reach their final decision after an applicant requests to be heard. However, there is an overarching expectation that matters will be resolved in a timely manner. The Trade Marks Act section 204 requires the Registrar to undertake a task as soon as practicable if there is no set time period to do so. IP Australia also makes a public commitment through its Customer Service Charter to deliver services in an efficient and timely manner. Commitments include issuing a decision following a hearing in trade mark matters within 3 months (at time of writing). Applications deferred under this new ground are still subject to these timeliness obligations and commitments.

Item [1] – After paragraph 4.13(2)(c)

This item inserts a new paragraph (ca) into subregulation 4.13(2), to allow the Registrar to defer acceptance at their own initiative where the applicant has made a request to be heard in relation to the application.

Item [2] – At the end of subparagraph 4.14(3)(g)(ii)

This item adds the word ‘and’ at the end of subparagraph 4.14(3)(g)(ii) to ensure proper conjunction with the paragraph being added.

Item [3] – After paragraph 4.14(3)(g)

This item inserts a new paragraph (ga) into subregulation 4.14(3), specifying that if acceptance is deferred because of a hearing request (under paragraph 4.13(2)(ca)), the deferral period ends on the earlier of the day the applicant withdraws the request to be heard or the day the Registrar decides to accept or reject the application. This will ensure that the examination period is paused during the hearing process.

Items [4 and 5] – After paragraph 17A.21(2)(c) and after paragraph 17A.22(3)(h)

These items insert a new paragraph (ca) into subregulation 17A.21(2), and a new paragraph (ha) into subregulation 17A.22(3). These are the equivalents of items 1 and 3, but with respect to IRDAs, rather than applications for registration.

Schedule 6 – Technical amendments

This Schedule makes two technical amendments to the Trade Marks Regulations. These both substitute the word ‘or’ in place of the previous ‘and’ in subparagraphs 4.14(3)(j)(i) and 17A.22(3)(j)(i).

These subparagraphs relate to when the deferment period ends if acceptance is deferred for a certification trade mark application (or IRDA) when a copy of the rules governing the use of the certification trade mark is sent to the Australian Competition and Consumer Commission.

Items [1 and 2] – Subparagraphs 4.14(3)(j)(i) and 17A.22(3)(j)(i)

These items substitute the word ‘or’ in place of the previous ‘and’ in subparagraphs 4.14(3)(j)(i) and 17A.22(3)(j)(i). These are minor technical amendments that do not substantively change the operation of these subparagraphs.

Schedule 7 – Application provisions

This Schedule amends the Trade Marks Regulations to set out how the amendments in Schedules 1 to 6 apply in certain circumstances and to save the operation of any repealed provisions, as necessary.

Item [1] – In the appropriate position in Part 22

This item inserts application provisions in Part 22 of the Trade Marks Regulations, which deals with applications, savings and transitional provisions.

22.31 - Application provisions—increased period for filing of notice of intention to defend

New regulation 22.31 sets out how the amendments in Schedule 1 apply to existing trade mark applications and IRDAs.

New subregulations 22.31(1) and (3) provide for the application of the new time limits in Schedule 1 to oppositions to registration and oppositions to IRDAs respectively. In either case, the new time limits apply where acceptance has been published on or after commencement.

New subregulations 22.31(2) and (4) provide for the application of the new time limits in Schedule 1 to oppositions to non-use removal and oppositions to cessation for non-use, respectively. In either case, the new time limits apply where the non-use application has been published on or after commencement.

Where publication occurred before the new provisions commence, the existing time limits continue to apply, even if they end after commencement. This ensures certainty about these time limits.

22.32 - Application provisions – relationship between registered trade marks and international trade marks

New regulation 22.32 provides that the changes in Schedule 2 apply to a registered trade mark becoming a protected international trade mark, whether that occurred before or after commencement.

The changes in Schedule 2 apply to trade marks that became protected international trade marks before commencement. In some cases, these changes alter existing rights, and in this sense may be said to effectively operate retrospectively. In particular, where a registered trade mark became a protected international trade mark before commencement and both trade marks met the criteria for partial replacement in the provisions as amended by Schedule 2, the effect of regulation 22.32 in combination with Schedule 2 is that, on commencement, the ‘date of effect’ of the protected international trade mark’s goods and services becomes the earlier date of those goods and services in the national registration. The exclusive right of the holder to use the mark accrues from its date of effect. It follows that this alteration to an existing right could be characterised as substantively retrospective.

While the provisions are retrospective in this sense, this is appropriate and necessary. The amendments do not affect any rights so as to disadvantage any person, nor do they impose liabilities for things done before registration. As such they do not raise any issues with regard to subsection 12(2) of the Legislation Act 2003.

The amendments do not disadvantage any person because the amendments only provide an earlier date of effect in respect of particular goods and services in cases where there is already a national registered trade mark that covers those goods and services owned by the same entity. The substantive rights given by the protected international trade mark are no broader than the substantive rights given by the national registered trade mark (per regulation 17A.39), so the change has no overall effect on third parties. The only effect is a positive one for owners – permitting the owner of the protected international trade mark to abandon the national trade mark registration and maintain only one international portfolio of marks, thereby avoiding unnecessary fees.

The changes are also necessary to implement Australia’s obligations under the Madrid Protocol. The Madrid Protocol and Regulations make it clear that replacement occurs from the date of effect of the protected international trade mark. Other jurisdictions implement replacement in this way. It is in Australia’s interests to ensure consistent application of the Madrid Protocol, as this reduces administrative and legal costs when Australians use the Madrid System to file trade marks abroad.

22.33 - Application provisions – rejecting IRDA on basis of sanctions regime

New regulation 22.33 provides that the amendments in Schedule 3 apply to an IRDA of which the Registrar has been notified on or after commencement. As described in regulation 17A.12, notification of an IRDA is the process by which the International Bureau makes the Registrar aware of an IRDA. This is effectively equivalent to an application for registration of a trade mark which has been made under section 27 of the Trade Marks Act. The difference is that for an IRDA, the International Bureau acts as the notifying intermediary.

It follows that the amendments do not apply to IRDAs notified before commencement, including where the Registrar has not yet examined or accepted the IRDA.

22.34 - Application provisions – Registrar's power to revoke acceptance of IRDA

New regulation 22.34 provides that the amendments in Schedule 4 apply to IRDAs accepted on or after commencement.

It follows that the amendments do not apply to IRDAs accepted before commencement, even if the Registrar issues a notice of intention to revoke acceptance after commencement.

23.35 - Application provisions - Extending period for examining trade mark applications where a hearing is requested

New regulation 23.35 sets out how the amendments in Schedule 5 apply to existing trade mark applications and IRDAs. The changes apply to requests to be heard that are made on or after commencement. It follows that the changes do not apply to hearings that were requested before commencement, even if the hearing has not yet occurred at commencement. At the date of commencement, relevant existing matters will already have extension of time arrangements in place. There are also few such matters at any given point in time. Making this ground for deferment available retrospectively would be of minimal practical benefit and may have unintended effects. Therefore it is not appropriate to make the proposal retrospective.

Attachment B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Trade Marks Amendment (International Registrations, Hearings and Oppositions) Regulations 2025

This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

This Disallowable Legislative Instrument amends the Trade Marks Regulations 1995 with minor updates and improvements including to ensure Australia complies with international obligations and to simplify trade mark processes. This includes updating Australia’s trade marks system in line with recent changes made to the international trade mark system known as the Madrid System.

The amendments:

provide a two-month period to file a notice of intention to defend an opposition
permit partial replacement of an Australian trade mark registration by a protected international trade mark
provide specific grounds to refuse protection of international trade marks in Australia based on the Australian sanctions regime
clarify the Registrar’s power to revoke acceptance of international registrations designating Australia
allow deferment of the time period for acceptance of a trade mark when a hearing is requested
make minor technical terminology changes.

In particular, Schedule 3 introduces a new ground for rejecting an International Registration Designating Australia (IRDA) if its protection would result in an asset being made directly or indirectly available to, or for the benefit of, a person or entity to whom assets must not be made available under the Autonomous Sanctions Act 2011, the Charter of the United Nations Act 1945, or their regulations (the ‘sanctions laws’). This Schedule ensures compliance with Australia’s sanctions laws by bringing the outcomes for IRDAs in line with those of directly filed national trade mark applications in similar circumstances.

A trade mark is an asset. Many sanctions laws prevent assets being made directly or indirectly available to, or for the benefit of, a person or entity who is designated, proscribed or prescribed by the sanctions laws (hereafter referred to as ‘designated persons or entities’). The sanctions laws prevent registration of a national trade mark whose registration would contravene sanctions. The Registrar of Trade Marks has no power to register a trade mark where such registration would contravene sanctions laws (Autonomous Sanctions Act sections 12 and 13, Charter of the United Nations Act sections 9 and 10).

The terminology and processes differ between national trade mark applications and IRDAs, but the end-state rights provided to a trade mark protected through either process are very similar. An accepted national trade mark application which has been afforded full protection in Australia, is known as a registered trade mark. An accepted IRDA which has been afforded full protection in Australia, is known as a protected international trade mark (PITM). The term ‘protected trade mark’ is used here to refer to both kinds of trade mark.

The holder of an IRDA must be a natural person or a legal entity and must have a connection to a member of the Madrid System through which they have sought to protect the international trade mark on which the IRDA is based. By nature, then, holders of PITMs are generally based outside of Australian territory. Seeking protection of their international trade mark in Australia is an indicator that they are doing or intend to do business in Australia (see Trade Marks Regulations 17A.13).

Unlike national trade marks, the Registrar is not required to take explicit action to extend protection to an IRDA. While there are a number of grounds for rejection based on which an IRDA may be refused protection, in the absence of these, an IRDA is automatically protected by operation of law. In particular, an IRDA is automatically protected 18 months after it is notified to Australia, unless the Registrar notifies the International Bureau of the World Intellectual Property Organization (which administers the Madrid System) of a provisional refusal and/or that late oppositions may be possible. Automatic protection unless a refusal is issued is an operation of the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (the Madrid Protocol), which is the operating treaty of the Madrid System.

Because protection of IRDAs occurs automatically by operation of law (rather than by action of the Registrar), the sanctions laws are not applied to the IRDA in the same way they are applied to national trade marks. This Schedule introduces a ground for rejection of an IRDA if its protection would result in an asset being made directly or indirectly available to, or for the benefit of, a designated person or entity. By providing a ground for rejecting an IRDA in these circumstances, a provisional refusal can be issued, which in turn ensures that the IRDA is not protected automatically.

In essence, this means that a designated person or entity will not be able to have an IRDA which benefits them protected in Australia. This could also impact parties who are not themselves designated persons or entities, such as where an IRDA is jointly held by more than one party. If an IRDA is unable to be protected due to the connection with the designated person or entity, co-holders or other would-be beneficiaries of an IRDA’s protection would also miss out on the benefits of protection.

Exemptions in the form of a permit or notice may permit assets to be made available to, or for the benefit of, persons or entities when this would otherwise be prohibited by the sanctions laws. The ground for rejection would not apply if the applicable permit or notice has been obtained.

Protection of a trade mark provides specific statutory rights

A trade mark is a sign used, or intended to be used, to distinguish goods or services in the course of trade. It acts as a ‘badge of origin’ to identify a given trade source. Trade marks do not need to be protected or registered to be used in Australia. Failure to formally protect a trade mark does not itself prevent someone from using their unprotected trade mark in the marketplace.

Formal protection is made available under the statutory trade mark regime established under the Trade Marks Act and associated legislation. A protected trade mark is a business asset whose existence is visibly recorded on Australian Government registers (the Register of Trade Marks which includes a Record of International Registrations). This asset is generally able to be transferred or licenced, although there are some minor exceptions. A protected trade mark is afforded certain statutory rights, including:

Excluding others from using the same or similar trade mark for commercial purposes (in the course of trade), if said use infringes the protected trade mark.
A cause of action to obtain relief if the trade mark has been infringed.
Preventing others from protecting a substantially identical or deceptively similar trade mark except in certain circumstances.
A defence to infringement actions taken by another party. In effect this means that the holder of a protected trade mark is still able to use that trade mark even if another party holds a similar protected trade mark. The other party will not be able to stop the holder from using their protected trade mark.

Importantly, then, failure to protect a trade mark can have consequences for the holder’s ability to make commercial use of their trade mark – including the ability to continue to use their trade mark in the face of another trader’s protected trade mark, and the ability to exclude others from using the trade mark. However, these consequences are not inevitable as a trade mark does not need to be protected to be used in the Australian marketplace and many traders use trade marks in Australia without formal protection.

There are criteria for protection of a trade mark. Both national trade mark applications and IRDAs can be rejected for various reasons which are explicitly set out in the Trade Marks Act and Regulations. These reasons include that a trade mark is likely to deceive or cause confusion, similarity to an earlier protected trade mark, or where use of the trade mark would be contrary to law. Rejecting applications on various grounds is a standard aspect of trade marks systems and, under the Madrid System, jurisdictions have the ability to set these criteria within the parameters of that system and various international agreements.

Human rights implications

This Disallowable Legislative Instrument, specifically Schedule 3 and the relevant application provisions, engages the following rights:

the right to freedom of expression in article 19(2) of the International Covenant on Civil and Political Rights (ICCPR)
the right to enjoy and benefit from culture in article 15(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR)
the right to work and to just and favourable conditions of work in articles 6 and 7 of the ICESCR
the right to an adequate standard of living in article 25 of ICESCR.

The impacts on the rights engaged, however, are proportionate, permissible and justified, for reasons explained below.

The Schedule applies, rather than fundamentally changes or extends, the operation of Australia’s sanctions laws. Sanctions laws already prohibit the making available of assets (including protected trade marks) to, or for the benefit of, designated persons or entities. The Schedule simply enables these restrictions to apply in the case of the otherwise automatic protection of an IRDA.

It should also be noted that intellectual property rights offer specific protections as defined in treaties and domestic intellectual property laws. Intellectual property rights such as the ability to protect a trade mark are not, in themselves, human rights.

Safeguards under sanctions laws and this Schedule

Australia’s sanctions laws have features that prevent the sanctions listing of a person or entity from limiting rights, or ensure that any limitations are permissible and appropriately justified. These features include using predictable, publicly available criteria; decision-making power being personally vested in the Minister; the ability for the listing to be revoked or expire; the ability to provide submissions on whether a listing should continue; and availability of judicial review. A person or entity who has concerns about the implications of their designation may either apply to the Minister for Foreign Affairs in the case of an Australian designation, or the Focal Point for De-listing or the Office of the Ombudsperson in the case of a United Nations designation, to have their designation revoked or de-listed, as the case may be. Features and safeguards are described in the explanatory materials of each sanctions law which enables the designation of persons or entities, for example the Autonomous Sanctions Amendment (Russia) Regulations 2022.

Schedule 3 also includes several safeguards and opportunities for review. It is subject to the procedural operations of trade marks law which ensures that the measure, like all grounds for rejection, is only applied by the Registrar of Trade Marks or their delegate after careful consideration of the individual circumstances. Procedural fairness is provided through the opportunity for the IRDA holder to provide a response to a provisional refusal or, if the matter is raised as a ground in an opposition by a third party, the opportunity to provide evidence in answer and/or request a hearing. The holder also has the option to appeal the decision through the Federal Court or the Federal Circuit and Family Court of Australia (Division 2).

Right to freedom of expression

Article 19(2) of the ICCPR provides that ‘everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.’

Schedule 3 interferes with the right to freedom of expression to the extent that refusal to extend protection to an IRDA on the basis of inconsistency with Australia’s sanctions laws would limit the dissemination of the holder’s trade mark in Australia. A trade mark is a form of expression because a sign is used to communicate information about the trade source of goods or services. As explained above, the refusal to extend protection to an IRDA does not itself prevent the holder from using their trade mark. However, an unprotected trade mark does not have the rights afforded to a protected trade mark. By restricting access to these rights, refusal may have the effect of limiting the holder’s ability to use the trade mark in Australia. For example, another trader might secure protection of a similar trade mark and be able to prevent the holder from using the unprotected trade mark (unless other defences are available).

The right to freedom of expression is not an absolute right and may be permissibly restricted where provided by law and necessary to respect the rights or reputations of others, or for the protection of national security, or of public order, or of public health or morals (article 19(3)).

Limitations are reasonable, necessary and proportionate

Introducing a ground for rejecting an IRDA on the basis of inconsistency with Australia’s sanctions laws is reasonable, necessary and proportionate to achieving the legitimate objectives of applying the sanctions laws to IRDAs (and achieving their legitimate objectives) and aligning treatment of PITMs with those of national trade marks under these laws.

As explained above, introducing this ground for rejection is necessary to ensure that the sanctions laws are applied as intended, that is that they restrict the ability of designated persons or entities to access or benefit from assets, including protected trade marks. This is already how the sanctions laws apply to national trade mark applications but in the case of IRDAs, a specific ground for rejection is required to disrupt the automatic protection which occurs in the absence of identified grounds for refusal. It is important to align treatment of PITMs as a matter of fairness.

The sanctions laws are themselves aimed at legitimate objectives listed under article 19(3), such as protecting the rights or reputations of others, protecting national security, public order, or public health or morals. Australian sanctions law restricts access to assets as a way of subjecting designated persons or entities to targeted financial sanctions. These targeted financial sanctions are imposed to address egregious situations of international concern. The designation of a person or entity under the sanctions laws aligns with one or a combination of objectives listed under article 19(3), depending on the individual circumstances of the case.

The limitation on the right to freedom of expression is reasonable, necessary and proportionate to achieve these objectives. This measure is the least restrictive option to achieve the legitimate objectives. It is directed at the identified problem – that protection will extend automatically to an IRDA in the absence of ground for refusal – and provides a targeted solution through a specific ground for rejection. Restricting the ability to enjoy the additional economic and legal benefits of holding a PITM is also less restrictive than other ways to sanction financial activity such as prohibitions on using or displaying any trade mark or sign.

There are safeguards in place which limit the extent of the restriction and allow review. These are explained in more detail above at Safeguards. The safeguards include features of the sanctions laws which prevent the sanctions listing of a person or entity from limiting rights, or ensure that any limitations are permissible and appropriately justified. They also include restrictions on the ground for rejection, including that it is only applied after careful consideration of the individual circumstances. Procedural fairness is provided through opportunities to provide a response to a provisional refusal or third-party opposition, and to appeal the decision through a relevant court.

Right to enjoy and benefit from culture

Article 15(1) of ICESCR recognises the right of everyone to (a) take part in cultural life, (b) enjoy the benefits of scientific progress and its applications, and (c) benefit from the protection of the moral and material interests resulting from any scientific, literary, or artistic production of which that person is the author. The UN Committee on Economic, Social and Cultural Rights has stated that the right to take part in cultural life requires the State Party to refrain from interference with the exercise of cultural practices and importantly, access to cultural goods and services, and to ensure the preconditions for participation, facilitation and promotion of cultural life, and access to and preservation of cultural goods.

Schedule 3 will in certain circumstances limit the right of individuals or groups of individuals who hold IRDAs to benefit from the protection of moral and material interests pursuant to article 15(1)(c). It could also potentially limit the right of such individuals to take part in cultural life and enjoy the benefits of scientific progress (articles 15(1)(a) and (b)).

The effect of rejecting an IRDA is that the relevant trade mark would not be afforded the specific protections available to a PITM under Australian domestic law. As explained above, the refusal to extend protection to an IRDA does not itself prevent the holder from using their trade mark. However, being unable to access the rights that accrue with protection may limit the holder’s ability to use the trade mark in Australia. As well as potentially being unable to use the unprotected trade mark if another trader protects a similar trade mark (because to do so would infringe on the other trader’s rights), the holder may also be less willing to use the trade mark given they are unable to realise the full commercial benefits of protecting their trade mark, including the ability to exclude others from using the trade mark, or to licence use of the protected trade mark to another person or entity. The result of this inability or unwillingness to use the trade mark may be that the goods and services usually offered under that trade mark may not be available in Australia, or might not be identifiable (due to lack of identifiable branding).

The rights pursuant to article 15(1)(c) are engaged to the extent that the trade mark in question is or is used to protect a moral or material interest resulting from a scientific, literary, or artistic production, and the holder or beneficiary of the trade mark is the author of said production. A trade mark can itself be an artistic production, as many trade marks feature artistic material such as visual imagery. More commonly, a trade mark would be used as an identifier or ‘badge of origin’ of a scientific, literary or artistic production.

The rights pursuant to article 15(1)(a) and (b) are engaged to the extent that the refusal of protection has the consequence of restricting the access of individuals or groups of individuals to goods and services that enable them to take part in cultural life (such as goods and services which are of cultural significance and only available under a certain trade mark), or that enable them to enjoy the benefits of scientific progress and its application (such as goods and services which apply new scientific discoveries which are only available under a certain trade mark). Article 15(1)(a) will also be engaged to the extent that providing goods and services under a trade mark is an expression of the cultural life of the individual or group associated with such a trade mark.

Limitation is necessary and permissible

A limitation on these rights through refusing an IRDA on the basis of inconsistency with Australia’s sanctions laws is necessary and permissible. The limitation is determined by law in a manner compatible with the nature of the right. The measure primarily targets financial activity. While in rare circumstances the ability to access certain goods and services or make use of certain trade marks will be impacted, the essence of the right to enjoy and benefit from culture is maintained. It should also be noted that while article 15(1)(c) protects moral and material interests in creative works, this protection does not equate to protected intellectual property rights as established under statutory regimes. Intellectual property rights are not, in themselves, human rights.

The limitation is required to achieve a legitimate aim. The primary aim of Schedule 3 is applying Australia’s sanctions laws to IRDAs and ensuring consistency with treatment of national trade mark applications. This in turn is directed to the legitimate aims of the sanctions laws, including meeting Australia’s international obligations, protecting the national interest, and addressing egregious situations of international concern.

Targeted financial sanctions are strictly necessary for the promotion of general welfare in a democratic society, as is the measure in Schedule 3 which ensures they are applied consistently to PITMs. These sanctions address wrongdoing and hold accountable those contributing to egregious situations of international concern, while minimising the impact on the general population.

The limitation is proportionate and the measure is the least restrictive alternative to achieve the aims. It is directed at the identified problem – that protection will extend automatically to an IRDA in the absence of ground for refusal – and provides a targeted solution through a specific ground for rejection. Restricting the ability to enjoy the additional economic and legal benefits of holding a PITM is also less restrictive than other ways to sanction financial activity such as prohibitions on using or displaying any trade mark or sign.

There are safeguards in place which limit the extent of the restriction and allow review. These are explained in more detail above at Safeguards, and demonstrate that the measure is compatible with the nature of the rights under ICESCR. The safeguards include features of the sanctions laws which prevent the sanctions listing of a person or entity from limiting rights, or ensure that any limitations are permissible and appropriately justified. They also include restrictions on the ground for rejection, including that it is only applied after careful consideration of the individual circumstances. Procedural fairness is provided through opportunities to provide a response to a provisional refusal or third-party opposition, and to appeal the decision through a relevant court.

Right to Work and to Just and Favourable Conditions of Work

Article 6 of the ICESCR provides that everyone has the right to ‘gain his living by work which he freely chooses or accepts’, and that States Parties will take appropriate steps to safeguard this right. Article 7 of the ICESCR provides for the enjoyment of just and favourable conditions of work, which includes ‘remuneration which provides all workers, at a minimum, with … fair wages and equal remuneration for work of equal value without distinction of any kind’. .

Schedule 3 would in certain circumstances limit the right of individuals or groups of individuals who hold IRDAs to benefit from the right to work and to just and favourable conditions of work (articles 6 and 7). Rejecting an IRDA will interfere with an individual’s right to work and to remuneration, to the extent that it would restrict that individual’s ability to use the trade mark to generate income from their work or promote increased income. As identified above, the refusal to extend protection to an IRDA does not itself prevent the holder from using their trade mark, however, not being able to access the rights that accrue with protection may limit their ability to use the trade mark in Australia or extract financial value from the additional legal benefits of protected status.

Limitation is necessary and permissible

A limitation on these rights through refusing an IRDA on the basis of inconsistency with Australia’s sanctions laws is necessary and permissible. The limitation is determined by law in a manner compatible with the nature of the rights. Schedule 3 impacts the ability to extract additional financial value from owning and using a protected asset in Australia. The right to work and to renumeration is only engaged insofar as a PITM helps generate income based on attaching a trade mark to that work. The essence of the right is maintained.

Right to an Adequate Standard of Living

Article 25 of ICESCR provides that ‘everyone has the right to a standard of living adequate for the health and well-being of himself and of his family’.

Schedule 3 would in certain circumstances limit the right of individuals or groups of individuals who hold IRDAs to benefit from the right to an adequate standard of living (article 25). Rejecting an IRDA may limit an individual’s right to an adequate standard of living to the extent that it would restrict an individual's ability to use the trade mark to generate income from their work or promote increased income. As identified above, the refusal to extend protection to an IRDA does not itself prevent the holder from using their trade mark in Australia, however, not being able to access the rights that accrue with protection may limit their ability to use the trade mark in Australia or extract financial value from the additional legal benefits of protected status.

Limitation is necessary and permissible

A limitation on this right through refusing an IRDA on the basis of inconsistency with Australia’s sanctions laws is necessary and permissible. The limitation is determined by law in a manner compatible with the nature of the right. Schedule 3 impacts the ability to extract additional financial value from owning and using a protected asset in Australia. The right to an adequate standard of living is only engaged insofar as a PITM helps generate income based on attaching a trade mark to their work. The essence of the right to an adequate standard of living is maintained.

Conclusion

This Disallowable Legislative Instrument is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate to achieving a legitimate objective.

The Hon Tim Ayres MP, Minister for Industry and Innovation

Administered by Department of Industry, Science and Resources

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