A competitor has a registered trade mark that blocks us from using a name we want, but we believe they have never actually used it in New Zealand. Is there a way to remove it from the register? I have tried asking around but nobody seems to give me a clear answer.
Yes. Under section 66 of the Trade Marks Act 2002, any person can apply to the Commissioner or the court to revoke the registration of a trade mark if it has not been put to genuine use in New Zealand by the owner, or with the owner's consent, in relation to the registered goods or services for a continuous period of three years or more, unless there are proper reasons for non-use. The registered owner has an opportunity to produce evidence of use, and the burden is on them to show it. Genuine use requires real commercial use, not just token use. Gather evidence, such as a search of the market, and consider the timing of your application. A successful removal can clear the way for your own registration. Take advice from a trade mark attorney.
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