(a)
that the trade mark was registered without any bona fide intention on the part of the applicant
for registration that it should be used in relation to those goods by him, and that there has in fact
been no bona fide use of the trade mark in relation to those goods by any proprietor thereof for
the time being up to the date one month before the date of he application; or
(b)
that up to the date one month before the date of the application a continuous period of five
years or longer elapsed during which the trade mark was a registered trade mark and during
which there was no bona fide use thereof in relation to those goods by any proprietor thereof for
the time being.
(3)
The tribunal may refuse an application made under this section on either of the said grounds if it is
shown that before the relevant date or during the relevant period, as the case may by, there has been
bona fide use of the trade mark, by any proprietor for the time being thereof, in relation to goods of
the same description as the goods to which the application relates, being goods in respect of which
the trade mark is registered:
Provided that where on any such application it is shown as aforesaid, the tribunal shall not refuse he
application
(a)
if the applicant has been permitted under section 13(2) of this Act to register an identical or
nearly resembling trade mark in respect of the goods in question; or
(b)
if the tribunal is of opinion that the applicant might properly be permitted to register such a
trade mark.
(4)
An applicant shall not be entitled to rely for the purposes of subsection (2) (b) of this section, on
any non use of a trade mark that is shown to have been due to special circumstances in the trade and
not to any intention not to use or to abandon the trade mark in relation to the goods to which the
application relates.
32. (1)
(2)
Where a trade mark consisting of an invented word or invented words has, as respects any goods
in respect of which it is registered and in relation to which it has been used (in this subsection
referred to as the familiar goods), become so well known that its use in relation to other goods would
be likely to be taken as indicating a connection in the course of trade between those goods and a
person entitled to use the trade mark in relation to the familiar goods, the trade mark may, on the
application in the prescribed manner of the proprietor registered in respect of the familiar goods, be
registered in his name in respect of those other goods as a defensive trade mark, notwithstanding that
the proprietor registered in respect of the familiar goods does not use or propose to use the trade
mark in relation to those other goods, and notwithstanding anything in section 31 of this Act; and
while so registered, the trade mark shall not be liable to be taken off the register in respect of those
goods under section 31 of this Act.
The registered proprietor of a trade mark-
(a)
may apply for its registration in respect of any goods as a defensive trade mark
notwithstanding that it is already registered in his name in respect of those goods otherwise than
as a defensive trade mark; or
(b)
may apply for its registration in respect of any goods otherwise than as a defensive trade mark
notwithstanding that it is already registered in his name in respect of those goods as a defensive
trade mark, in place, in either case, of the existing registration.
(3)
A trade mark registered as a defensive trade mark and that trade mark as otherwise registered in
the name of the same proprietor shall, notwithstanding that the respective registrations are in respect
of different goods, be deemed to be, and shall be registered as, associated trade marks, and section
28 of this Act shall apply to them accordingly.
(4)
On application by any person concerned to the court or, at the option of the applicant and subject
to section 56 of this Act, to the Registrar, the registration of a trade mark as a defensive trade mark -