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Issues Involved:
1. Whether the appellants' application under Section 46 of the Trade and Merchandise Marks Act, 1958 for removal of the trade mark of the respondent on account of non-use was within time. 2. Whether non-use by the respondent was on account of restriction on import, constituting special circumstances. Detailed Analysis: Issue 1: Timeliness of the Application under Section 46 The appellants' application under Section 46 of the Trade and Merchandise Marks Act, 1958 was dismissed by the learned Single Judge, who held that the application was barred under Section 137 of the Limitation Act, 1963. The appellants contended that non-use is a continuous process, giving them a recurring cause of action for removal of the impugned mark. They argued that Section 46 does not envisage any relief period but only provides for a qualifying period of five years and one month, thus the application was not barred by limitation. The court noted that the Trade and Merchandise Marks Act, 1958 is both substantive and procedural, and Article 137 of the Limitation Act, 1963 does not apply to applications for rectification under Section 46. The court held that every day of non-use continuing for five years and one month before the institution of the application entitles the appellants to maintain the application. The court concluded that the application was not barred by limitation, setting aside the learned Single Judge's finding on this issue. Issue 2: Special Circumstances for Non-Use The respondent contended that the non-use of the trademark was due to special circumstances, specifically restrictions under the Import Policy. The court considered various import policies from different years, which listed consumer goods, including air-conditioners, as banned items. The respondent argued that these restrictions constituted special circumstances under Section 46(3) of the Act. The court found that the respondent had established an intention to use the trademark but was prevented from doing so due to legal disabilities imposed by the government's import restrictions. The court noted that the respondent had taken steps to protect its trademark, such as filing suits for infringement and passing off, which indicated an intention to use the trademark. The court held that the existence of special circumstances, such as the import ban, justified the non-use of the trademark by the respondent. The court agreed with the learned Single Judge's finding that the trademark was not liable to be removed on the ground of non-use due to these special circumstances. Conclusion: The court concluded that the appellants' application under Section 46 was not barred by limitation, but the respondent's non-use of the trademark was justified due to special circumstances. Consequently, the appeal was dismissed, and the trademark of the respondent was not removed from the register. The parties were left to bear their own costs.
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