The Full Court has power to rectify the Trade Marks Register by removing marks registered after a primary judge's decision where leave to appeal is subsequently granted and the appeal succeeds. The obligation under s 68(1)(b) to register a mark does not arise until the appeal process, including any application for leave to appeal to the Full Court, has been exhausted (per the majority; [name withheld] disagreed). Section 85(b) extends to correcting the fact of an entry made in error, not merely particulars within an entry. When applying s 41(6) to colour marks, the scope and construction of the mark must be determined as part of the distinctiveness inquiry. The [name withheld] test for opposition proceedings remains open for reconsideration by a Full Court.
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