Trade mark restoration after non-renewal depends on proper discretion, and delay alone will not defeat renewal relief.

A trade mark removed from the register for non-renewal may be restored where the statutory restoration power is exercised justly and for its proper purpose. The Registrar's discretion under Section 19(3) of the Trade Marks Act, 1940 and Rule 49(2) of the Trade Marks Rules, 1942 is not punitive and cannot be used arbitrarily or as a matter of personal preference. Mere delay in applying for restoration is not, by itself, enough to refuse relief, especially where no third party rights have been shown and no prejudice to others is demonstrated. Restoration was therefore held to be warranted and the trade mark entitled to be restored.

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Issues: Whether a trade mark removed from the register for non-renewal could be restored under the statutory restoration provision despite alleged non-receipt of notice, delay in seeking restoration, and absence of demonstrated prejudice to any third party.

Analysis: Section 19(3) of the Trade Marks Act, 1940 and Rule 49(2) of the Trade Marks Rules, 1942 confer a discretionary power on the Registrar to remove a trade mark for non-compliance with renewal requirements and to restore it if restoration is just. The discretion is to be exercised for the purpose for which it was conferred and not arbitrarily or as a matter of personal preference. The question of restoration is not punitive in character. Mere delay in applying for restoration is not, by itself, a sufficient ground for refusal, especially where there is no finding that a third party has since acquired rights or would be prejudiced by restoration.

Conclusion: Restoration ought to be granted, as the statutory conditions for refusing it were not shown to exist. The appeal succeeds and the trade mark is entitled to restoration.

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