Bona fide intended use through a proposed registered user can satisfy trade mark registration requirements when the arrangement is genuine.

A trade mark application may be based on a genuine intention to use the mark through a proposed registered user, provided the commercial arrangement is bona fide and not a device for trafficking. The statutory fiction in section 48(2) extends permitted use by a registered user to the proprietor where that use is material under the Act, and this can support proposed use at the date of application if a definite user arrangement already exists. On the stated facts, the collaboration structure, control safeguards, absence of royalty, and continuous steps to commercialise the mark showed bona fide intended use in India, so the rectification challenge under section 46(1)(a) failed.

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Issues: Whether a trade mark application can be founded on an intention to use the mark through a proposed registered user, and whether the mark was liable to removal from the register for want of bona fide intention and bona fide use.

Analysis: The statutory scheme under section 18(1) of the Trade and Merchandise Marks Act, 1958 permits application by a person claiming to be the proprietor of a mark used or proposed to be used by him. Section 48(2) deems permitted use by a registered user to be use by the proprietor for purposes where such use is material under the Act, and that legal fiction must be carried to its logical conclusion. Read with section 46(1)(a), the fiction is not confined to post-registration user alone; an applicant may satisfy the requirement of proposed use if, at the date of application, he genuinely had in mind a definite proposed registered user and the commercial arrangement was bona fide. The object of the Act is to prevent trafficking in trade marks, not to defeat genuine collaborative use. On the facts, the collaboration arrangements, control mechanisms, absence of royalty, and the continuous chain of steps showed a real and bona fide commercial intention to use the mark in India through the Indian company as registered user. The challenge under section 46(1)(a) therefore failed, and the question of removal on the basis of non-use did not arise for determination.

Conclusion: The Court held that an intention to use a trade mark through a proposed registered user can amount to a bona fide intention to use by the proprietor for purposes of registration, and the rectification application based on section 46(1)(a) was not maintainable on the proved facts.

Ratio Decidendi: Where, at the date of application, the proprietor has a genuine and definite intention to use the mark through a contemplated registered user, and the arrangement is bona fide and not a device for trafficking, section 48(2) applies so that such intended permitted use can satisfy the statutory requirement of proposed use by the applicant.

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