Trade Marks Act, 1996

Claim to priority of Convention application.

40.—(1) A person who has duly filed an application for protection of a trade mark in a Convention country (in this Act referred to as a “Convention application”), or the successor in title to such a person, has a right to priority, for the purpose of registering the same trade mark under this Act for some or all of the same goods or services, for a period of six months from the date of filing of the first Convention application.

(2) If the application for registration under this Act is made within the period specified in subsection (1)

(a) the relevant date for the purposes of establishing which rights take precedence shall be the date of filing of the first Convention application, and

(b) the registrability of the trade mark shall not be affected by any use of the mark in the State in the period between that date and the date of the application under this Act.

(3) Any filing which in a Convention country is equivalent to a regular national filing, under its domestic legislation or an international agreement, shall be treated as giving rise to the right of priority; and for this purpose a “regular national filing” means a filing which is adequate to establish the date on which the application was filed in that country, irrespective of the outcome of the application.

(4) A subsequent application concerning the same subject as the first Convention application, filed in the same Convention country, shall be considered the first Convention application (of which the filing date is the starting date of the period of priority) if, at the time of the subsequent application—

(a) the previous application has been withdrawn, abandoned or refused, without having been laid open to public inspection and without leaving any rights outstanding; and

(b) it has not yet served as a basis for claiming a right of priority;

and in such a case the previous application may not thereafter serve as a basis for claiming a right of priority.

(5) Provision may be made by rules as to the manner of claiming a right to priority on the basis of a Convention application.

(6) A right to priority arising as a result of a Convention application may be assigned or otherwise transmitted, either with the application or independently; and the reference in subsection (1) to the applicant's successor in title shall be construed accordingly.