3.2 Preparing Evidence of Use demonstrating Acquired Distinctiveness

Where a section 18(1) objection has been raised against an application, section 18(2) of the Act provides that the objection may be overcome if the applicant can show that the trade mark has acquired distinctive character as a result of its use of the trade mark prior to the filing date of the request.

Where the Applicant states that they are gathering evidence of use to demonstrate that the trade mark is eligible for registration under section 18(2), IPONZ will generally accept this as a persuasive reason for exercising the Commissioner’s discretion to grant an initial extension of time. Subsequent requests for extension of time that cite this reason should be accompanied by supporting documentation. The Commissioner will consider the supporting documentation, in combination with the progression of the application up to that point, when determining whether it is appropriate to grant the extension.