No. 4907
Government Gazette 23 March 2012
Act No. 1, 2012
81
INDUSTRIAL PROPERTY ACT, 2012
as contemplated in section 151, or who performs acts which make it likely that
infringement will occur.
(2)
The rights referred to in subsection (1) are in respect of the use of a
mark identical to or so similar to the registered trade mark as to be likely to deceive or
cause confusion, and in relation to goods or services in respect of which the trade mark
is registered, or goods or services so similar to those for which the trade mark has been
registered that it is likely that deception or confusion may arise among members of the
public.
(3)
In case of such use of an identical mark for identical goods or services,
a likelihood of deception or confusion must be presumed.
(4)
The registered owner of a well-known trade mark as contemplated in
section 138(1)(a) or (b) or a registered licensee of such a trade mark as contemplated in
section 167 has, in addition to any other rights, remedies or actions available to him or
her, the right to institute legal proceedings against any person who infringes the trade
mark by using the mark in the course of trade and without the written authorisation of
the registered owner in the circumstances contemplated in section 138(1)(a) or (b) or
182(c).
Exhaustion of rights
153.
The right to institute proceedings conferred by the registration of a
trade mark does not extend to
(a)
acts in respect of articles to which the trade mark has been applied and
which have been put on the market in any country by the registered
owner or with his or her written consent;
(b)
the use of the trade mark in respect of or in relation to goods to be sold
or otherwise traded in, or services to be performed in, any place to
which the registration does not extend, or the use of the trade mark in a
manner or in circumstances to which, having regard to any conditions
or limitations entered in the register, the registration does not extend.
Right to continue to use
154. (1)
Nothing in this Act entitles the proprietor of a registered trade
mark to interfere with or restrain the use by any person of a trade mark identical to a
trade mark or nearly resembling it in respect of goods or services in relation to which
that person or a predecessor in title of his or hers has made continuous and bona fide use
of that trade mark from a date prior to –
(a)
the use of the first-mentioned trade mark in relation to those goods or
services by the proprietor or a predecessor in title; or
(b)
to the registration of the first-mentioned trade mark in respect of those
goods or services in the name of the proprietor or a predecessor in
title,