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4. Honest concurrent use
Up one levelPursuant to section 26(b) of the Act, a trade mark may proceed to registration if a case of honest concurrent use exists that, in the opinion of the Commissioner or the Court, makes it “proper” for the trade mark to be registered.
Honest concurrent use was originally a common law doctrine that required the owner seeking protection to “come with clean hands”.4 The requirement that the concurrent use must be honest has been reproduced in the legislation.
The onus is on the applicant to prove the existence of honest concurrent use. The applicant must file evidence of use in order to do this.
Footnote
4 General Electric case [1972] 1 WLR 729 at 743.
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