97A Exhaustion of rights conferred by registered trade mark

(1)

A registered trade mark is not infringed by the use of the trade mark (including use for the purpose of advertising) in relation to goods that have been put on the market anywhere in the world under that trade mark under any 1 or more of the following circumstances:

(a)

by the owner:

(b)

with the owner’s express or implied consent:

(c)

by an associated person of the owner.

(2)

For the purposes of subsection (1)(c), a person is an associated person of the owner if—

(a)

they are in the same group of companies; or

(b)

they are both bodies corporate and they consist of substantially the same members or are directly or indirectly under the control of the same persons; or

(c)

either of them has effective control of the other’s use of the trade mark; or

(d)

a third person has effective control of the use of the trade mark by each of them.

(3)

For the purposes of subsection (2),—

(a)

group of companies includes a holding company and its subsidiaries within the meaning of section 5 of the Companies Act 1993; and

(b)

a person has effective control of the use of a trade mark if that person may authorise the use of the trade mark or has significant influence over how it is used, regardless of how that authorisation or influence arises (for example, whether directly or indirectly and whether by way of proprietary interest, contract, arrangement, understanding, a combination of those things, or otherwise).

Section 97A: replaced, on 16 September 2011, by section 16 of the Trade Marks Amendment Act 2011 (2011 No 71).