TM: correcting ownership errors post registration

Issue summary

The office receives a significant number of requests to correct ownership errors after registration of a trade mark. A registered trade mark filed with an incorrect owner is invalid and vulnerable to cancellation. The true owner is determined under s 27 of the Trade Marks Act at the time of filing. If the wrong entity is named as owner at filing, they do not meet the requirements under s 27.

Assignment is not effective to cure the defect, since it does not change who the owner was at filing (Pham Global Pty Ltd v Insight Clinical Imaging Pty Ltd). The Registrar's power to correct mistakes under s 81 cannot be used, since it only applies to mistakes of the Registrar (Vokes Ltd v Laminar Air Flow Pty Ltd). The only hope for such marks is that a court will exercise their discretion to decline to cancel them (PDP Capital Pty Ltd v Grasshopper Ventures Pty Ltd).