3.6.1 Removal where the mark expired prior to the commencement of the Trade Marks Act 2002 but was not advertised before commencement

There are no transitional provisions in the Trade Marks Act 2002 or Trade Marks Regulations 2003 stating whether advertisement of a registration that expired under the Trade Marks Act 1953 should occur after the commencement of the Trade Marks Act 2002.

However, section 18 of the Interpretation Act 1999 provides the general rules relating to the effect of the repeal of legislation on existing rights under that legislation. Generally, “the repeal of an enactment (including regulations) does not affect the completion of a matter or thing or the bringing or completion of proceedings that relate to an existing right, interest, title, immunity, or duty” ²⁷. Regulation 54 of the Trade Marks Regulations 1954 confers on trade mark proprietors a right to continued registration of their trade marks until one month after advertisement of the expiry of their trade marks.

In the absence of any transitional provisions to the contrary, the Trade Marks Act 1953 and Trade Marks Regulations 1954 will continue to have effect for the purpose of completing any matter or thing that relates to an existing right, interest title or duty, as if they had not been repealed²⁸ . Accordingly trade marks that expired prior to the commencement of the Trade Marks Act 1953 will still be advertised according to regulation 54 of the Trade Marks Regulations 1954, and will not be removed if the renewal fee has not been paid until one month after such advertisement.

Footnotes

²⁷ See section 18(1) of the Interpretation Act 1999.

²⁸ See section 18(2) of the Interpretation Act 1999.