Bona fide use of a trade mark through authorised use can defeat non-use rectification where a genuine trade connection exists.

Registered trade marks were not liable to removal for non-use where use by an authorised user formed bona fide use attributable to the proprietor. The statutory scheme treats permitted use by a registered user as use by the proprietor, and the Court found a genuine continuing trade connection between proprietor and user. Use of the mark on bicycles manufactured under that connection satisfied the requirement of bona fide use, so the non-use ground under Section 46(1)(b) was not established and the exception in Section 46(3) did not apply. The power to remove a mark remained discretionary, with commercial and public interest relevant to the rectification decision.

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Issues: Whether the registered trade marks were liable to be removed from the register for non-use under Section 46 of the Trade and Merchandise Marks Act, 1958, and whether use by an unregistered but authorised user could be treated as bona fide use by the proprietor for that purpose.

Analysis: The statutory scheme treats permitted use by a registered user as use by the proprietor under Section 48(2). The Court further held that, on the facts, there had been a real and continuing trade connection between the proprietor and the user of the mark, and the use of the mark in passing off the bicycles manufactured under the proprietor's mark constituted bona fide use for the purpose of Section 46(1)(b). The exception under Section 46(3) was held not to be attracted. The Court also affirmed that the power to remove a mark is discretionary and that commercial and public interest may be considered in deciding whether to strike the mark off.

Conclusion: The application for rectification was not made out, and the refusal to remove the trade marks from the register was sustained.

Ratio Decidendi: For the purpose of removal of a trade mark for non-use, bona fide use may be established by authorised use where there is a genuine trade connection with the registered proprietor, and the rectification power remains discretionary unless the statutory conditions for removal are clearly satisfied.

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