Under the Australian Trade Marks Act 1995, priority for an Australian trade mark application may be claimed providing the basic application was filed less than 6 months in a country that is party to the Paris Convention.
However, the Australian Trade Marks Act 1995 only provides a narrow window of opportunity in which to claim priority.
Under section 29 and regulation 4.5, the applicant must file a claim for priority at the time of filing the application or up to 2 working days after filing the application.
Outside of this prescribed period, the applicant cannot file a claim to convention priority. However, there are mechanisms that can be employed to obtain a priority claim providing it can be shown to the satisfaction of the Australian Trade Marks Office that there was an error or omission by the applicant or their agent or there were circumstances beyond the control of the applicant or their agent.
