Controlled use of a trade mark by a subsidiary can count as proprietor's use and defeat a non-user rectification claim.

A registered trade mark was held not liable to rectification where the evidence showed that the proprietor had not assigned away the mark and continued to exercise permission, supervision and quality control over its use. Use by the operating company, treated as a subsidiary under the proprietor's control, was capable of amounting to use by the proprietor itself. The plea of continuous non-user therefore failed, and no proved exception displaced the statutory protection attached to the registration. The allegations of assignment, absence of control and non-user were rejected, so cancellation was not warranted.

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Issues: Whether the registered trade mark was liable to be rectified and removed on the grounds of alleged assignment, non-user, and absence of control by the registered proprietor.

Analysis: The petitions for rectification were founded mainly on the claim that the registered proprietor had parted with the mark and that use by the factory operator could not amount to user by the proprietor. The registration, however, had long passed the statutory period of conclusiveness, and the challenge was not brought within any proved exception to that protection. On the evidence, the arrangements between the proprietor and the operating company showed permission to use the mark, retention of title by the proprietor, and continuing supervision and control over manufacture, standards, quality, stock and machinery. The relationship between the companies was also treated as one of holding and subsidiary companies, so that use by the subsidiary under the proprietor's control was capable of being treated as use by the proprietor. The mark continued to denote a commercial connection with the proprietor in the course of trade, and the plea of continuous non-user was not established.

Conclusion: The allegations of assignment and non-user failed, and the trade mark was not liable to rectification or cancellation.

Final Conclusion: The petitions for rectification were rejected, with costs, because the registered proprietor's controlled use through its subsidiary amounted to valid use of the mark and no ground for removal was proved.

Ratio Decidendi: Use of a trade mark by a subsidiary under the continuing control, supervision, and quality assurance of the registered proprietor can amount to use by the proprietor itself and defeat a claim of non-user for rectification.

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