Trade and Merchandise Marks Act, 1958

Section 46(l)(b) & 56 —
Rectification of register . Removal of mark from registration for non-user — Field Marshall — When before the Board non-user of mark for more than five years on the part of registered owner is established, such owner may show application of section 46(3) to his case, i.e. bona-fide intention to use the trade mark on the date of application for registration — Such bona-fide intention has to be proved by registered proprietor — Valuable right of registered proprietor can be taken away under Section 46, only when conditions thereof are satisfied—An assign er can transfer only such right which he possesses. If his title is not extinguished by reason of a provision of a statute for non-user of the trade mark for a period of five years, any assignment made shall be valid subject to situation — The right of a registered trade mark is not lost automatically on the expiry of five years and one month. It does not provide for a 'sun set' law. It has to be adjudicated upon. Whether the registered proprietor of the trade mark had taken recourse to trafficking or not must be determined in an appropriate proceeding — Appeal allowed.[Paras 12 to 14, 19 to 25, 27, 33 & 34}