TM International
TRADE MARK ACT
PART III
Community Trade Marks and International Matters
Community Trade Marks
Meaning of “Community trade mark” and “Community Trade Mark Regulation”.
56. —In this Act—
(a) “Community trade mark” has the meaning given by Article 1 (1) of the Community Trade Mark Regulation; and
(b) “the Community Trade Mark Regulation” means Council Regulation (EC) No. 40/94 of 20 December, 1993 on the Community trade mark.
Meaning of ‘European Union trade mark’, ‘European Union Trade Mark Regulation’ and ‘Directive’*
56. (1) In this Act—
(a) ‘European Union trade mark’ has the meaning given by Article 1 (1) of the European Union trade mark regulation;
(b) ‘European Union trade mark regulation’ means regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 20173 on the European Union trade mark (codification);
(c) ‘Directive’ means Directive (EU) 2015/2436 of the European Parliament and of the Council of 16 December 20154 to approximate the laws of the Member States relating to trade marks (Recast).
(2) A word or expression that is used in this Act and that is also used in the EU trade mark regulation or the Directive shall have the same meaning in this Act as it has in the EU trade mark regulation or the Directive.*
* *S.I. No. 561 of 2018 European Union (Trade Marks) Regulations 2018
Power to make provision in connection with Community Trade Mark Regulation.
57. —(1) The Minister may by regulations make such provision as he considers appropriate in connection with the operation of the Community Trade Mark Regulation.
(2) Provision may, in particular, be made with respect to—
(a) the filing of applications for Community trade marks through the Patents Office;
(b) the procedures for determining a posteriori the invalidity, or liability to revocation, of the registration of a trade mark from which a Community trade mark claims seniority;
(c) the conversion of a Community trade mark or an application
for a Community trade mark into an application for registration under this Act; and
(d) the designation of Courts in the State having jurisdiction over proceedings arising out of the Community Trade Mark Regulation.
(3) Without prejudice to the generality of subsection (1), provision may be made by regulations under this section making in relation to the list of professional representatives maintained in pursuance of Article 89 of the Community Trade Mark Regulation, and persons on that list, provision corresponding to that made by, or capable of being made under, sections 84 to 90 in relation to the register of trade mark agents and registered trade mark agents.
(4) Section 24 (remedy for groundless threats of infringement proceedings) and Part VI (offences) shall apply in relation to a Community trade mark as they apply in relation to a registered trade mark.†
Section 54 .
Collective Marks
General
1. The provisions of this Act shall apply in relation to collective marks subject to the following provisions of this Schedule.
Signs of which a collective mark may consist
2. In relation to a collective mark, the reference in section 6 (1) to distinguishing goods or services of one undertaking from those of other undertakings shall be construed as a reference to distinguishing goods or services of members of the association which is the proprietor of the mark from those of other undertakings.
Indication of geographical origin
3. (1) Notwithstanding the provisions of section 8 (1) (c), a collective mark may be registered which consists of signs or indications which may serve, in trade, to designate the geographical origin of the goods or service.
(2) However, the proprietor of a mark referred to in subparagraph (1) shall not be entitled to prohibit the use of the signs or indications in accordance with honest practices in industrial or commercial matters (in particular, in the case of a person who is entitled to use a geographical name).
Mark not to be misleading as to character or significance
4. (1) A collective mark shall not be registered if the public is liable to be misled as regards the character or significance of the mark, in particular, if it is likely to be taken to be something other than a collective mark.
(2) The Controller may, accordingly, require that a mark in respect of which an application is made for registration as a collective mark shall comprise some indication that it is a collective mark, and, notwithstanding section 44 (3), an application may be amended so as to comply with any such requirement.
Regulations governing use of collective mark
5. (1) An applicant for registration of a collective mark shall file with the Controller regulations governing the use of the mark.
(2) The regulations shall specify the persons authorised to use the mark, the conditions of membership of the association and, where they exist, the conditions of use of the mark, including any sanctions against misuse of the mark.*
(2A) The regulations governing the use of the mark shall authorise any person whose goods or services originate in the geographical area concerned to become a member of the association which is the proprietor of the mark, provided that the person fulfils all the other conditions of the regulations.†
(3) Provision may be made by rules for further matters in respect of which regulations are required.
Approval of regulations by Controller
6. (1) A collective mark shall not be registered unless the regulations governing the use of the mark—
(a) comply with paragraph 5 (2) and any further requirements imposed by rules; and
(b) are not contrary to public policy or to accepted principles of morality.
(2) Before the end of the prescribed period after the date of the application for registration of a collective mark, the applicant must file the regulations with the Controller and pay the prescribed fee; and if the applicant does not do so, the application shall be deemed to be withdrawn.
7. (1) If it appears to the Controller that the requirements (other than those specified in paragraph 6) for registration have been met, the Controller shall consider the matters specified in paragraph 6 (1) and may—
(a) accept the application;
(b) accept it subject to conditions (including amendment of the regulations or otherwise); or
(c) refuse to accept it.
(2) Where the Controller accepts an application subject to specified conditions, and those conditions are complied with within the prescribed period, the Controller shall proceed with the publication in the Journal in accordance with section 43 .
(3) Where the Controller accepts an application subject to specified conditions and those conditions are not complied with within the prescribed period, the application shall be deemed to be withdrawn.
8. (1) The regulations governing the use of the mark shall be open to public inspection and notice of opposition may be given, and observations may be made, relating to the matters specified in paragraph 6 (1).
(2) The provisions of this paragraph are in addition to any other grounds on which an application may be opposed or observations made.
* *S.I. No. 561 of 2018 European Union (Trade Marks) Regulations 2018
*S.I. No. 561 of 2018 European Union (Trade Marks) Regulations 2018
Regulations to be open to inspection
9. The regulations governing the use of a registered collective mark shall, in like manner as the register, be open to public inspection.
Amendment of regulations
10. Where the regulations governing the use of a registered collective mark are amended, the regulations, as amended, shall not be effective unless and until the amended regulations are filed with and accepted by the Controller the Controller and the mention of the amendment of the regulations is entered in the register.*
Infringement proceedings: rights of authorised users
11. (1) Subject to any agreement to the contrary between an authorised user and the proprietor, the provisions of this paragraph shall have effect in relation to the infringement of a registered collective mark.
(2) An authorised user shall be entitled to call on the proprietor to take infringement proceedings in respect of any matter which affects the authorised user’s interests.
(3) Where the proprietor refuses or fails to take infringement proceedings in accordance with subparagraph (2) within two months after being called upon to do so, the authorised user may bring the proceedings in the authorised user’s name as if the authorised user were the proprietor.
(3) Without prejudice to the provisions of any agreement, the authorised user may bring proceedings for infringement of a trade mark only if its proprietor consents thereto.”,†
(4) Where the infringement proceedings are brought by virtue of subparagraph (3)—
(a) the authorised user may not, without the leave of the Court appropriate court‡, proceed with the action unless the proprietor is either joined as a plaintiff or added as a defendant; and
(b) a proprietor who is so added as a defendant shall not be liable for any costs in the action unless he takes part in the proceedings.
(5) Nothing in subparagraph (4) shall affect the granting of interlocutory relief on an application by an authorised user alone.
(6) In the course of infringement proceedings brought by the proprietor of a registered collective mark, any loss suffered or likely to be suffered by authorised users shall be taken into account by the Court appropriate court; and the Court appropriate court may give such directions as it thinks fit regarding the extent to which the plaintiff shall hold the proceeds of any pecuniary remedy on behalf of such users.
† *S.I. No. 561 of 2018 European Union (Trade Marks) Regulations 2018
‡ Copyright and Other Intellectual Property Law Provisions Act 2019
(7) An authorised user shall for the purpose of obtaining compensation for damage suffered by him or her, be entitled to intervene in infringement proceedings brought by the proprietor of a registered collective mark.
Grounds for revocation of registration
12. Apart from the grounds of revocation provided for in section 51 , the registration of a collective mark may shall be revoked on the ground that—
(a) the manner in which the mark has been used by the proprietor persons authorised to use it has made it misleading to the public in the manner referred to in paragraph 4
(1); or
(b) the proprietor has failed to observe, or to secure the observance of the regulations governing the use of the mark; or
(b) the proprietor has not taken reasonable steps to prevent the mark being used in a manner that is incompatible with the conditions of use laid down in the regulations governing the use of the mark, including any amendments thereto mentioned in the register; or”,
(c) an amendment of the regulations has been made so that the regulations—
(i) no longer comply with paragraph 5 (2) and any further conditions imposed by rules; or
(i) no longer comply with paragraph 5(2) and any further conditions imposed by rules unless the proprietor of the mark, by further amending the regulations governing use, complies with the requirements of the First Schedule; or”,
(ii) are contrary to public policy or to accepted principles of morality.
Grounds for invalidity of registration
13. Apart from the grounds of invalidity provided for in section 52 , the registration of a collective mark may be declared invalid on the ground that the mark was registered contrary to the provisions of paragraph 4 (1) or 6 (1).
13. In addition to the grounds of invalidity provided for in section 52, where appropriate with the exception of section 8(1)(c), concerning signs or indications which may serve, in trade, to designate the geographical origin of the goods or services, the registration of a collective mark shall be declared invalid on the ground that the mark was registered contrary to the provisions of paragraph 4(1) or 6(1), unless the proprietor of the mark, by further amending the regulations governing use, complies with the requirements of the First Schedule.*
* *S.I. No. 561 of 2018 European Union (Trade Marks) Regulations 2018
SECOND SCHEDULE
Certification Marks
Section 55 .
General
1. The provisions of this Act shall apply in relation to certification marks subject to the following provisions of this Schedule.
Signs of which a certification mark may consist
2. In relation to a certification mark, the reference in section 6 (1) to distinguishing goods or services of one undertaking from those of other undertakings shall be construed as a reference to distinguishing goods or services which are certified from those which are not certified.
Indication of geographical origin
3. Notwithstanding the provisions of section 8 (1) (c), a certification mark may be registered which consists of signs or indications which may serve, in trade, to designate the geographical origin of the goods or services:
Provided that the proprietor of such a mark shall not be entitled to restrain the use of the signs or indications in accordance with honest practices in industrial or commercial matters, in particular, by a person who is entitled to use a geographical name.
Nature of proprietor’s business
4. A certification mark shall not be registered if the proprietor carries on a business involving the supply of goods or services of the kind certified.
4. Any natural or legal person, including institutions, authorities and bodies governed by public law, may apply for certification marks provided that such person does not carry on a business involving the supply of goods or services of the kind certified*.
Mark not to be misleading as to character or significance
5. (1) A certification mark shall not be registered if the public is liable to be misled as regards the character or significance of the mark, in particular, if it is likely to be taken to be something other than a certification mark.
(2) The Controller may, accordingly, require that a mark in respect of which an application is made for registration as a certification mark shall comprise some indication that it is a certification mark; and notwithstanding section 44 (3), an application may be amended so as to comply with any such requirement.
* *S.I. No. 561 of 2018 European Union (Trade Marks) Regulations 2018
Regulations governing use of certification mark
6. (1) An applicant for registration of a certification mark shall file with the Controller regulations governing the use of the mark.
6A. The requirement of use referred to in section 16A shall be satisfied where genuine use of a certification mark is made by any person who has the authority to use it.*
(2) The regulations shall indicate who is authorised to use the mark, the characteristics to be certified by the mark, how the certifying body is to test those characteristics and to supervise the use of the mark, the fees (if any) to be paid in connection with the operation of the mark and the procedures for resolving disputes.
(3) Provision may be made by rules for further matters in respect of which regulations are required.
Approval of regulations, &c. by Minister
7. (1) A certification mark shall not be registered unless the Minister is satisfied that—
(a) the regulations governing the use of the mark—
(i) comply with paragraph 6 (2) and any further requirements imposed by rules; and
(ii) are not contrary to public policy or to accepted principles of morality; and
(b) the applicant is competent to certify the goods or services for which the mark is to be registered.
(2) If it appears to the Controller that the requirements for registration other than those in subparagraph (1) are met, the Controller shall authorise the applicant to proceed with the application.
(3) Within the prescribed period of authorisation to proceed, the applicant must file the regulations (if this has not already been done) and pay the prescribed fee, failing which, the application shall be deemed to be withdrawn.
8. (1) The Minister shall consider the matters mentioned in paragraph 7 (1) and may direct that the application for registration be accepted, be accepted subject to conditions (as to amendment of the regulations or otherwise), or be not accepted.
(2) Where the Minister directs that the application be accepted, and any conditions are complied with within the prescribed period, the Controller shall proceed in accordance with section 43 .
(3) Where the Minister directs that an application be accepted subject to specified conditions and those conditions are not complied with within the prescribed period, the application shall be deemed to be withdrawn.
* *S.I. No. 561 of 2018 European Union (Trade Marks) Regulations 2018
9. The regulations shall be published and notice of opposition may be given, and observations may be made, relating to the matters mentioned in paragraph 7 (1), in addition to any other grounds on which an application may be opposed or observations made.
Regulations to be open to inspection
10. The regulations governing the use of a registered certification mark shall, in like manner as the register, be open to public inspection.
Amendment of regulations
11. (1) An amendment of the regulations governing the use of a registered certification mark shall not be effective unless and until the Minister consents to the amendment and the amended regulations are filed with the Controller.
(2) The Minister may cause an application for consent under subparagraph (1) to be published in any case where it appears expedient to do so.
(3) Any person may, within the prescribed time from the date of the publication of the application, give notice to the Minister of opposition to the application and any such notice shall be given in writing in the prescribed manner and shall include a statement of the grounds of opposition.
(4) After the Minister has consented to such an amendment as is mentioned in subparagraph (1), the Controller shall publish notice in the Journal when the amended regulations are filed with him.
Consent to assignment of registered certification mark
12. The assignment or other transmission of a registered certification mark shall not be effective without the consent of the Minister.
Infringement proceedings: rights of authorised users
13. (1) Subject to any agreement to the contrary between an authorised user and the proprietor, the provisions of this paragraph shall have effect in relation to the infringement of a registered certification mark.
(2) An authorised user shall be entitled to call on the proprietor to take infringement proceedings in respect of any matter which affects the authorised user’s interests.
(3) Where the proprietor refuses or fails to take infringement proceedings in accordance with subparagraph (2) within two months after being called upon to do so, the authorised user may bring the proceedings in the authorised user’s own name as if the authorised user were the proprietor.
(4) Where infringement proceedings are brought by virtue of subparagraph (3)—
(a) the authorised user may not, without the leave of the Court appropriate court*, proceed with the action unless the proprietor is either joined as a plaintiff or added as a defendant; and
(b) a proprietor who is so added as a defendant shall not be liable for any costs in the action unless the proprietor takes part in the proceedings.
(5) Nothing in subparagraph (4) shall affect the granting of interlocutory relief on an application by an authorised user alone.
(6) In the course of infringement proceedings brought by the proprietor of a registered certification mark, any loss suffered or likely to be suffered by authorised users shall be taken into account by the Court appropriate court; and the Court appropriate court may give such directions as it thinks fit regarding the extent to which the plaintiff shall hold the proceeds of any pecuniary remedy on behalf of such users.
Grounds for revocation of registration
14. (1) Apart from the grounds of revocation provided for in section 51 , the registration of a certification mark may be revoked on the ground that—
(a) the proprietor has begun to carry on such a business as is mentioned in paragraph 4; or
(b) the manner in which the mark has been used by the proprietor has made it misleading to the public in the manner referred to in paragraph 5 (1); or
(c) the proprietor has failed to observe, or to secure the observance of, the regulations governing the use of the mark; or
(d) an amendment of the regulations has been made so that the regulations—
(i) no longer comply with paragraph 6 (2) and any further conditions imposed by rules; or
(ii) are contrary to public policy or to accepted principles of morality; or
(e) the proprietor is no longer competent to certify the goods or services for which the mark is registered.
(2) An application for revocation on the ground mentioned in subparagraph (1) (c), (d) or (e)
shall be made to the Minister.
(3) For the purposes of this paragraph the reference in section 51 (6) to the Controller or the Court High Court† shall be construed as a reference to the Minister.
Grounds for invalidity of registration
15. (1) Apart from the grounds of invalidity provided for in section 52, the registration of a certification mark may be declared invalid on the ground that the mark was registered contrary to the provisions of paragraph 4, 5 (1) or 7 (1).
(2) An application for a declaration of invalidity on the ground that the registration was made contrary to the provisions of paragraph 7 (1) shall be made to the Minister.
* Copyright and Other Intellectual Property Law Provisions Act 2019
General provisions as to functions of Minister
16. (1) The provisions of sections 69 to 74 shall apply in relation to the Minister and the Minister’s functions under this Schedule as they apply in relation to the Controller and the Controller’s functions.
(2) Section 79 shall apply in relation to a decision of the Minister under this Schedule as they apply in relation to a decision of the Controller.
(3) The Minister may, for the purpose of discharging any of his functions under this Schedule, refer any matter to a body or person appearing to the Minister to have experience of matters of that description, and may take their report or advice into account in reaching his decision.
The Madrid Protocol: International Registration
The Madrid Protocol.
58. —In this Act—
“the Madrid Protocol” means the Protocol relating to the Madrid Agreement concerning the International Registration of Marks, adopted at Madrid on 27th June, 1989;
“the International Bureau” has the meaning given by Article 2 (1) of that Protocol; and “international trade mark” means a trade mark which is entitled to protection in the State under that Protocol.
Power to make provision giving effect to Madrid Protocol.
59. —(1) The Minister may by regulations make such provision as he considers appropriate for giving effect in the State to the provisions of the Madrid Protocol.
(2) Provision may, in particular, be made with respect to—
(a) the filing of applications for international registrations through the Patents Office as office of origin;
* *S.I. No. 561 of 2018 European Union (Trade Marks) Regulations 2018
(b) the procedures to be followed where the basic application or registration in the State fails or ceases to be in force;
(c) the procedures to be followed where the Patents Office receives from the International Bureau a request for extension of protection to the State;
(d) the effects of a successful request for extension of protection to the State;
(e) the transformation of an international registration or an application for an international registration into a national application for registration;
(f) the communication of information to the International Bureau;
(g) the payment of fees and amounts prescribed in respect of applications for international registrations, extensions of protection and renewals.
(3) Section 24 (remedy for groundless threats of infringement proceedings); and Part VI (offences) shall apply in relation to an international trade mark as they apply in relation to a registered trade mark.
The Paris Convention: Supplementary Provisions
The Paris Convention. 60.—(1) In this Act—
(a) “the Paris Convention” means the Paris Convention for the Protection of Industrial Property of March 20th, 1883, as amended or supplemented by any protocol to that Convention which is for the time being in force in the State; and
(aa) “Agreement establishing the World Trade Organisation” means the Agreement establishing the World Trade Organisation done at Marrakesh on 15 April 1994, as amended or supplemented by any protocol to that Agreement which is for the time being in force in the State;**
(b) a “Convention country” means a country, other than the State, which is a party to that Convention the Paris Convention or the Agreement establishing the World Trade Organisation.
(2) The Minister may by order make such amendments of this Act and rules made under this Act as appear to the Minister appropriate in consequence of any revision or amendment of the Paris Convention or the Agreement establishing the World Trade Organisation after the passing of this Act.
Protection of well-known trade marks: Article 6bis
61. —(1) References in this Act to a trade mark which is entitled to protection under the Paris Convention or the Agreement establishing the World Trade Organisation as a well-known trade mark are to a mark which is well known in the State as being the mark of—
(a) a national of a Convention country, or
(b) a person who is domiciled in, or has a real and effective industrial or commercial establishment in, a Convention country,
whether or not that person carries on business, or has any goodwill, in the State; and references to the proprietor of such a mark shall be construed accordingly.
* Patents Amendment Act 2006 (31/2006)
(2) Subject to section 53 , the proprietor of a trade mark which is entitled to protection under the Paris Convention or the Agreement establishing the World Trade Organisation* as a well- known trade mark shall be entitled to restrain by injunction the use in the State of a trade mark which, or the essential part of which, is identical or similar to the proprietor’s mark, in relation to identical or similar goods or services, where the use is likely to cause confusion.
(3) Nothing in subsection (2) shall affect the continuation of any bona fide use of a trade mark begun before the commencement of this section.
National emblems &c. of Convention countries: Article 6ter
62. —(1) A trade mark which consists of or contains the flag of a Convention country shall not be registered without the authorisation of the competent authorities of that country, unless it appears to the Controller that use of the flag in the manner proposed is permitted without such authorisation.
(2) A trade mark which consists of or contains the armorial bearings or any other state emblem of a Convention country which is protected under the Paris Convention or the Agreement establishing the World Trade Organisation shall not be registered without the authorisation of the competent authorities of that country.
(3) A trade mark which consists of or contains an official sign or hallmark adopted by a Convention country and indicating control and warranty shall not, where the sign or hallmark is protected under the Paris Convention or the Agreement establishing the World Trade Organisation, be registered in relation to goods or services of the same or a similar kind as those in relation to which it indicates control and warranty, without the authorisation of the competent authorities of the country concerned.
(4) The provisions of this section as to national flags and other state emblems and official signs or hallmarks apply equally to anything which, from a heraldic point of view, imitates any such flag or other emblem, sign or hallmark.
(5) Nothing in this section prevents the registration of a trade mark on the application of a national of a country who is authorised to make use of a state emblem or official sign or hallmark of that country, notwithstanding that it is similar to that of another country.
(6) Where, by virtue of this section, the authorisation of the competent authorities of a Convention country is or would be required for the registration of a trade mark, those authorities shall be entitled to restrain by injunction any use of the mark in the State without their authorisation.
Emblems &c. of certain international organisations: Article 6ter.
63. —(1) This section applies to—
(a) the armorial bearings, flags or other emblems, and
(b) the abbreviations and names,
of international intergovernmental organisations of which one or more Convention countries are members.
(2) A trade mark which consists of or contains any such emblem, abbreviation or name which is protected under the Paris Convention or the Agreement establishing the World Trade
Organisation* shall not be registered without the authorisation of the international organisation concerned, unless it appears to the Controller that the use of the emblem, abbreviation or name in the manner proposed—
(a) is not such as to suggest to the public that a connection exists between the organisation and the trade mark; or
(b) is not likely to mislead the public as to the existence of a connection between the user and the organisation.
(3) The provisions of this section as to emblems of an international organisation apply equally to anything which, from a heraldic point of view, imitates any such emblem.
(4) Where, by virtue of this section, the authorisation of an international organisation is or would be required for the registration of a trade mark, that organisation shall be entitled to restrain by injunction any use of the mark in the State without its authorisation.
(5) Nothing in this section affects the right of a person whose bona fide use of the trade mark in question began before 9th June, 1967 (when the relevant provisions of the Paris Convention entered into force in relation to the State).
Notification under Article 6ter of the Convention.
64. —(1) For the purposes of section 62 state emblems of a Convention country (other than the national flag) and official signs or hallmarks shall be regarded as protected under the Paris Convention only if, or to the extent that—
(a) the country in question has notified the State in accordance with Article 6ter (3) of the Convention that it desires to protect the emblem, sign or hallmark;
(b) the notification remains in force; and
(c) the State has not objected to it in accordance with Article 6ter (4) or any such objection has been withdrawn.
(2) For the purposes of section 63 , the emblems, abbreviations and names of an international organisation shall be regarded as protected under the Paris Convention only if, or to the extent that—
(a) the organisation in question has notified the State in accordance with Article 6ter
(3) of the Convention that it desires to protect that emblem, abbreviation or name;
(b) the notification remains in force; and
(c) the State has not objected to it in accordance with Article 6ter (4) or any such objection has been withdrawn.
(3) Notification under Article 6ter (3) of the Paris Convention shall have effect only in relation to applications for registration made more than two months after the receipt of the notification.
(4) The Controller shall keep and make available for public inspection by any person, at all reasonable hours and free of charge, a list of—
(a) the state emblems and official signs or hallmarks, and
* Patents Amendment Act 2006 (31/2006)
(b) the emblems, abbreviations and names of international organisations,
which are for the time being protected under the Paris Convention by virtue of notification under Article 6ter (3).
(5) A reference in this section to Article 6ter of the Paris Convention shall be read as a reference to that Article as applied by the Agreement establishing the World Trade Organisation*.
Acts of agent or representative: Article 6septies.
65. —(1) The following provisions apply where an application for registration of a trade mark is made by a person who is an agent or representative of a person who is the proprietor of the mark in a Convention country and the application is made without the proprietor’s authorisation.
(2) Where the proprietor opposes the application, registration shall be refused.
(3) Where the application (not being so opposed) is granted, the proprietor may—
(a) apply for a declaration of the invalidity of the registration; or
(b) apply for the rectification of the register so as to substitute the proprietor’s name as the proprietor of the registered trade mark.
(4) The proprietor may (notwithstanding the rights conferred by this Act in relation to a registered trade mark) apply to the Court High Court† to restrain by injunction any use of the trade mark in the State which is not authorised by the proprietor.
(5) Subsections (2), (3) and (4) shall not apply if, or to the extent that, the agent or representative justifies his action.
(6) An application under subsection (3) (a) or (b) must be made within three years of the proprietor becoming aware of the registration; and no injunction shall be granted under subsection (4) in respect of a use in which the proprietor has acquiesced for a continuous period of three years or more.