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TMI Blog2013 (12) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... he mark during the relevant period of five years from the date of one month before the date of the application for rectification. Once it is prima facie shown, then the onus shifts to the registered proprietor to prove the use of the trademark during the relevant period - Relying upon Hardie Trading Ltd. & Anr. V. Addisons Paint and Chemicals Ltd. [2003 (9) TMI 542 - SUPREME COURT OF INDIA ] – where the evidence on record does not show absolute non-user of trademark during the period of 5 years and one month prior to the application for rectification and it was not economically possible for the owner of the registered trademark to put its goods manufactured abroad immediately due to restrictions imposed by the Import Trade Control Policies for the relevant years, the application for rectification could not be allowed on the ground of alleged non-user as the case is covered under the term “special circumstances”. There was no non-user of the trademark ‘KOHINOOR” in respect of rice in class 30 for five years and one month prior to the date of the rectification application – there was no error in the inclusion of another District also for selling the rice and later extending the be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rant of trademark registration in favour of the appellant throughout India. 4. All the above-mentioned applications were clubbed together and an order was passed by the learned Single Judge on 11.09.2003 whereby CMM No.303 of 1993 was allowed to the extent of permitting the Respondent to use trademark for the entire state of Uttar Pradesh. CMM No.313 of 1996 was also partly allowed. CMM No.327 of 1993 was dismissed. 5. The appellant then preferred OCJA No.5 of 2003 before the Division Bench against the order of the learned Single Judge passed in CMM No.313 of 1996 and OCJA No.6 was preferred against the order of the learned Single Judge passed in CMM No.303 of 1993. The appellant, alleging violation of the order passed by the Division Bench on 10.11.2003, staying the operation of the order passed by the learned Single Judge, filed a Contempt Application No.928 of 2006. The Division Bench of the Delhi High Court passed a common order on 15.05.2007 upholding all the findings recorded by the learned Single Judge. 6. Appellant herein then preferred three Special Leave Petitions. SLP (C) NO.15496 of 2007 was preferred against the order in OCJA No.6 of 2003, SLP(C) No.18213 of 2007 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equently on 24.2.1981. 9. We notice, the appellant herein applied for registration of trademark KOHINOOR only in July, 1985. The application was allowed and the trademark was advertised in Trademark Journal in 1985. Yet another application was filed by the appellant for registration of trademark KOHINOOR in respect of rice for export included in class 30 on 3rd July, 1985. The said trademark was published in the Trademark Journal on 11th October, 1989. The appellant filed rectification application for deregistration of trademark KOHINOOR in favour of the respondent in respect of rice in class 30 on the plea that the respondent had got the trademark KOHINOOR registered without bonafide intention to use it and there was no bonafide use of the trademark by the respondent for a period of 5 years and 1 month preceding the date of filing of the application for rectification. 10. We are, in this case, primarily concerned with the interpretation of provisions of Section 46(1) and 46(2) of the Act, which are reproduced hereinbelow :- 46(1). Subject to the provisions of section 47, a registered trade mark may be taken off the register in respect of any of the goods in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter such a trade mark; on application by that person in the prescribed manner to a High Court or to the Registrar, the tribunal may impose on the registration of the first- mentioned trade mark such limitations as it thinks proper for securing that registration shall cease to extend to such use. 11. Section 46(1)(b) provides that that up to a date one month before the date of the application, a continuous period of five years or longer had elapsed during which the trademark was registered and during which there was no bonafide use thereof in relation to the goods for which it was registered by the proprietor for the registered trademark. Onus to prove non-use rests upon the applicant who has filed the application for rectification. Of course, it is sufficient that the applicant who has filed the application for rectification to give prima facie evidence for non-use of the mark during the relevant period of five years from the date of one month before the date of the application for rectification. Once it is prima facie shown, then the onus shifts to the registered proprietor to prove the use of the trademark during the relevant period. 12. The scope of the above-mentioned pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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