Brand name use defeats small scale exemption where the mark indicates trade connection, even if unregistered.

Small scale exemption was examined in relation to use of the mark "rollin" by a group concern. The Tribunal treated the mark as a brand name because it was used in relation to goods to indicate a trade connection, and the definition covered registered and unregistered marks alike. The fact that the mark was unregistered was therefore irrelevant. It also noted that another group concern had already availed the exemption using the same mark, supporting the view that the appellant's use was not eligible for the small scale exemption on the facts found, although the appeal was ultimately allowed.

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Issues: Whether the appellant was entitled to small scale exemption despite using the brand name "rollin", alleged to be an unregistered brand name associated with another group concern.

Analysis: The dispute turned on whether the mark used by the appellant qualified as a brand name within the meaning of the exemption notification, and whether the fact that it was unregistered made any difference. The Tribunal noted that the definition of brand name covers a name or mark used in relation to goods to indicate a connection in the course of trade, whether registered or not. It also considered that the same name was used by different group concerns and that the exemption had already been availed by another concern using the same mark. On that basis, the mark was treated as a brand name and the unregistered status was held to be irrelevant for the exemption claim.

Conclusion: The appellant was held not entitled to the exemption on the facts found, though the appeal was ultimately allowed.

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