Commonwealth Numbered Regulations

INTELLECTUAL PROPERTY LEGISLATION AMENDMENT REGULATIONS 2011 (NO. 1) (SLI NO 62 OF 2011) - SCHEDULE 3

(regulation 5)

[1]           Regulation 17A.2, definition of Common Regulations

omit

1 April 2007.

insert

1 September 2009.

[2]           Paragraph 17A.25 (1) (b)

omit

[3]           Paragraph 17A.25 (2) (a)

omit

rule 17 of

[4]           Subregulation 17A.33 (3)

substitute

         (3)   Despite subregulations (1) and (2), a requirement to serve a document on the holder, or to give the holder an opportunity to make written representations or to be heard, does not apply if no address for service of the holder is recorded in the Record of International Registrations.

[5]           After subregulation 17A.48 (6)

insert

      (6A)   Despite subregulation (3), a requirement to serve a document on an opponent, or to give the opponent an opportunity to make written representations or to be heard, does not apply if no address for service of the opponent is recorded in the Record of International Registrations.

[6]           After paragraph 17A.66 (3) (b)

insert

              (ba)    the address for service of the holder;

[7]           After regulation 17A.73

insert

17A.74    Address for service of documents

Application of regulation

         (1)   This regulation applies in relation to the following persons:

                (a)    the holder of an IRDA;

               (b)    the holder of a protected international trade mark;

                (c)    a person who applies under regulation 17A.61 to have a claim recorded;

               (d)    a person whose claim is recorded under regulation 17A.62;

                (e)    a person who, under regulation 17A.29, opposes the extension of protection in Australia to a trade mark that is the subject of an IRDA;

                (f)    a person who applies under subregulation 17A.48 (1) for a trade mark that is, or may become, a protected international trade mark to cease to be protected;

               (g)    a person who opposes an application under subregulation 17A.48 (1).

Note    The address for service of a person who is not mentioned in subregulation (1) is covered by section 215 of the Act.

Address for service

         (2)   An address for service must be an address in Australia.

         (3)   If the person notifies the Registrar of an address for service, the Registrar must enter the address in the Record of International Registrations as the person's address for service.

         (4)   If the address changes to another address:

                (a)    the person must notify the Registrar of the new address; and

               (b)    the Registrar must amend the Record of International Registrations accordingly.

         (5)   If the person ceases to have an address for service in respect of the IRDA or protected international trade mark:

                (a)    the person must notify the Registrar that the person no longer has an address for service; and

               (b)    the Registrar must remove the address from the Record of International Registrations.

Note    See subregulation (9).

         (6)   If the Registrar is satisfied that the address for service notified by the person is no longer an address of the person, the Registrar must remove the address from the Record of International Registrations and notify the person of the removal.

Note    See subregulation (9).

Service

         (7)   If the Act provides, or these Regulations provide, that a document is to be served on, or given or sent to, the person, the document may be left at, or sent by post to, the address for service of the person.

Note     Section 29 of the Acts Interpretation Act 1901 and section 160 of the Evidence Act 1995 may govern when service on an address in Australia is taken to be effected.

         (8)   Subregulation (7) does not affect the operation of section 28A of the Acts Interpretation Act 1901 .

Note     Section 28A of the Acts Interpretation Act 1901 provides that a document may be served (this term includes given, or sent, to):

'(a) on a natural person:

(i)    by delivering it to the person personally; or

(ii)   by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or

(b)   on a body corporate--by leaving it at, or sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate.'.

No address for service

         (9)   If no address for service is recorded for the person in the Record of International Registrations:

                (a)    a requirement in the Act or these Regulations to serve a document on the person is taken to be satisfied by posting the document to, or leaving it at, a foreign address appearing in the Record for the person; and

               (b)    the requirement is taken to be satisfied on the day in Australia on which the document is posted to, or left at, the foreign address.

Note    If subregulation (9) applies, and a document is required to be served in a prescribed period, it will be sufficient compliance that the document is posted to the foreign address on the final day in Australia of the prescribed period. It is not necessary for the posted document to be received at the foreign address on or before that final day, as reckoned in Australia or at the foreign address.

[8]           Subregulation 21.24B (2)

substitute

         (2)   For paragraph 223A (2) (b) of the Act, the table sets out prescribed persons.

Note     SES employee is explained in section 34 of the Public Service Act 1999 . That meaning is applied generally to Commonwealth legislation by section 17AA of the Acts Interpretation Act 1901 .