[3.9] S.58A PRIOR PRIOR CONTINUOUS USE
Section 58A states:
(1) This section applies to a trade mark (section 44 trade mark) the application for registration of which has been accepted because of:
(a) subsection 44(4);(1) or
(b) a similar provision of the regulations made for the purposes of Part 17A.
Note: Subsection 44(4) prevents rejection of an application for registration of a trade mark that is substantially identical with, or deceptively similar to, a registered trade mark or a trade mark whose registration is being sought where the first-mentioned trade mark has been continuously used since before the priority date of the other trade mark.
(2) The registration of the section 44 trade mark may be opposed on the ground that the owner of the substantially identical or deceptively similar trade mark (similar trade mark) or the predecessor in title:
(a) first used the similar trade mark in respect of:
(i) similar goods or closely related services; or
(ii) similar services or closely related goods;
before the owner of the section 44 trade mark or the predecessor in title in relation to the section 44 trade mark first used the section 44 trade mark; and
(b) has continuously used the similar trade mark in respect of those goods or services since that first use.
As noted in subsection (1) above, this section only provides a ground of opposition when a trade mark application has been accepted on the ground of prior continuous use.
In such circumstances the trade mark application may be opposed when the opponent establishes that a substantially identical or deceptively similar trade mark has been used in relation to conflicting goods or services continuously since an even earlier date. Hence in effect the opponent must show evidence of continuous use dating back prior to the prior continuous use or what could otherwise be understood to be prior prior continuous use.