Section 26
Section 26
(2)
For the purposes of subsection (1)—
(a)
the date of filing of the first Convention application shall be the relevant date in establishing which rights take precedence; and
(b)
the registrability of the application of the trademark shall not be affected by any use of the trademark in
Malaysia in the period between the date of filing of the first Convention application and the date of the application of the same trademark under this Act.
(3)
Where a right of priority is claimed by reason of a Convention application under subsection (1), the application for registration of the same trademark shall specify—
Trademarks 33
(a)
the date of filing of the first Convention application;
(b)
the Convention country in which the Convention application was first filed;
(c)
the application or registration number of the Convention application accorded by the registering or other competent authority of the relevant Convention country; and
(d)
the goods or services to which the claim relates.
(4)
Any filing which in a Convention country is equivalent to a regular national filing, under its domestic legislation or an international agreement, shall be treated as giving rise to the right of priority.
(5)
A subsequent application concerning the same subject as the first Convention application, filed in the same Convention country, shall be considered the first Convention application (of which the filing date is the starting date of the period of priority), if at the time of the subsequent application—
(a)
the previous application has been withdrawn, abandoned or refused, without having been laid open to public inspection and without leaving any rights outstanding; and
(b)
it has not yet served as a basis for claiming a right of priority.
(6)
For the purposes of subsection (5), the previous application may not serve as a basis for claiming a right of priority.
(7)
A right to priority arising as a result of a Convention application may be assigned or transmitted together with the application or independently and the reference in subsection (1) to the applicant’s “successor in title” shall be construed accordingly.
(8)
For the purposes of this section, a “regular national filing”
means a filing which is adequate to establish the date on which the application was filed in that country, whatever may be the subsequent fate of the application.
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