- Laws of Fiji

[TM 88] Exhaustion of rights conferred by registered trademark88

(1) A registered trademark is not infringed by the use of the trademark, including use for the purpose of advertising, in relation to goods that have been put on the market in any jurisdiction under that trademark under any one 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;
(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;
(c)either of them has effective control of the other’s use of the trademark; or
(d)a third person has effective control of the use of the trademark by each of them.

(3) For the purposes of subsection (2)—

(a)“group of companies” includes a holding company and its subsidiaries; and
(b)a person has effective control of the use of a trademark if that person may authorise the use of the trademark 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).