 arrangement of clausbs chapter i prl:liminary clauses1 short title, extent and commencement 2 definitions and interpretation 3 high court having jurisdiction  chapter ii the register and condmons for rkguitration4 registrar of trade marks 5 trade marks registry and branches thereof 6 the register of trade marks 7 part a and part b of the register 8 registration to be in respect of particular goods 9 requisites for registration in parts a and b of the register 10 limitation as to colour 11  prohibition of registration 0: certain marks 12 prohibition of registration of identical or deceptively similr trade marks 13 prohibition of registration of names of chemical elements 14 use of names and representations of living persons or persons recently dead 15 registration of parts of trade marks and of trade marks 81 a series 16 registration of trade marks as associated trade marks 17 registration of trade marks subject to disclaimer  clause$60 certain provisions of this act not applicable to certification trade marks 61 registration of certifioation trade marks 62 applications for registration of certification trade marks 63 consideration of applications for registration by central government 64 opposition to registration of certification trade marks 65 deposit of regulations governing the use of a certification trade mark 66 rights conferred by registration of certification trade marks 67 infringement of certification trade marks 68 acts not constituting infringement of certification trade marks 69 cancellation or varying of registration 70 decisions of central government to be final  chapter ix special provisions for textile goods71 textile goods' 72 restriction on registration of textile goods 73 refused textile marks list 74 stamping of piece goods, cotton yarn and thread 75 determination of character of textile goods by' sampling  chapter x offences, penalties and procedure76 meaning of applying trade marks and trade descriptions 77 falsifying and falsely applying trade marks 78 penalty for applying false trade marks and trade descriptions, etc), 'i'd penalty for selling goods to which a false trade mark or false trade description is al'plied 80 penalty for removing piece goods, etc, contrary to section 74 clat1s~ 81 penalty for falsely representing a trade mark as registered 82 penalty for improperly describing an office as the trade marks office 83 penalty for falsification of entries in the register 84 no offence in certain cases 85 forfeiture of goods 86 exemption of certain persons employed in ordinary course of business 87 procedure where invalidity of registration is pleaded by the accused 88 cognizance of certain offences 89 courts competent to try offences 90 evidence of origin of goods imported by sea 91 costs of defence or proiecution 92 limitation of prosecution 93 information as to commission of offence 94 punishment of abetment in india of acts done out of india 95 instructions by central government as to permissible varia· tions to be observed by criminal courts  chapter xi miscellaneous96 implied warranty on sale of marked goods 97 powers of registrar 98 exercise of discretionary power by registrar 99 evidence before the registrar 100 death of party to a proceeding 101 extension of time 102 abandonment 103 preliminary advice by the registrar as to distinctiveness 104 procedure before central governn'lent 105 suit for infrin8ement, etc, to be instituted before district court 106 reliefs in suits for infringement or for passing off - 107 application for rectification of register to be made to high court in certain cases  clauses108 procedure for application for rectification before a hilh court 109 appeals! 110 power of high courts to make rules 111 stay of proceedings where the validity of registration of the trade mark is questioned, etc 112 appearance of registrar in legal proceedings 113  costs of registrar in proceedinss before high court 114 registered user to be impleaded in certain proceedings 115 revisional powers of the registrar 116 evidence of entries in register, etc, and things done by the registrar 117 registrar and other officers not compellable to produce register, etc 118 power to require goods to show indication of origin 119 power to require information in respect of imported goods bearing false trade marks 120 certificate of validity ~ 121 groundless threats of legal proceedings 122 address for service 123 trade usage, etc, to be taken into coiulideration 124 agents 125 indexes 126 documents open to public inspection 127 fees 128 savings in respect of certain matters in chapter x 129 declaration as to ownership of trade mark not registrable under the inqian registration act, 1908 130 government to be bound 131 special provisions relating to applications for registration from citizens of convention countries 132 provision as to reciprocity 133 power of central government to make rules 134 rules to be placed bef~re parliament 135 amendments 136 repeals and savin,s! the schedule  the trade and merchandise marks bill, 1958 (to be introduced in lok sabha) a billto provide for the registration and better protection of trade marks and for the prevention of the use of fraudulent marks on merchandise! be it enacted by parliament in the ninth year of the republic of india as follows:- chapter ipreliminary s 1 (1) this act may be called the trade and merchandise marks short title commencement act, 1958 extent and (2) it extends to the whole of india   (3) it shall come into force on such date as the central government may, by notification in the official gazette, appoint 10 2 (1) in this act, unless the context otherwise requires,-definitions and inter-(a) "assignment" means an assignment in writing by act of pretation the parties concerned; is (b) "associated trade marks" means trade marks deemed to be, or required to be, registered as associated trade marks under this act; 20 (c) "certification trade mark" means a mark adapted in relation to any goods to distinguish, in the course of trade, goods certified by any person in respect of origin, material, mode of manufacture, quality, accuracy or other characteristic, from goods not so certified and registrable as such under the provisions of chapter viii in respect of those goods· in the name, as proprietor of the certification trade mark, of that person; (d) "deceptively similar":-a trade mark shall be deemed to be deceptively similar to another trade mark if it so nearly resembles that other trade mark as to be likely to deceive or cause confusion; (e) "district court" has the meaning assigned to it in the s code of civil procedure, 1908; s of 1908 (f) "false trade description" means-(0 a trade description which is untrue or misleading in a material respect as regards the goods to which it is applied; or 10 (ii) any alteration of a trade description as regards the goods to which it is applied, whether by way of addition, effacement or otherwise, where that alteration makes the description untrue or misleading in a material respect; or (iii) any trade description which denotes or implies is that there are contained, as regards the goods to which it is applied, more yards or metres than there are contained therein standard yards or standard metres; or (iv) any marks or arrangement or combination thereof applied to goods in such manner as to be likely to lead 20 persons to believe that the goods are the manufacture or merchandise of some person other than the person whose  merchandise or manufacture they really are; or (v) any false name or initials of a person applied to goods in such manner as' if such name or initials were a 25 trade description in any case where the name or initials-(a) is or are not a trade mark or part of a trade mark; and (b) is or are identical with or deceptively similar to the name or initials of a person carrying on business 30 in connection with goods of the same description and who has not authorised the use of such name or initials; and (c) is or are either the name or initials of a fictitious person or of some person not bona fide carrying 3s on business in connection with such goods; and the fact that a trade description is a trade mark or part of a trade mark shall not prevent such trade description being a false trade description within the meaning of this act; (g) "goods" means anything which is the subject of trade or manufacture; (h) "high court" means the high court having jurisdiction under section 3; s (i) "limitations" (with its grammatical variations) means any limitations of the exclusive right to the use of a trade mark given by the registration of a person as proprietor thereof, including limitations of that right as to mode of use, ~s to use in relation to goods to be sold or otherwise traded in within india, 10 or as to use in relation to goods to be exported to any market outside india; (j) "mark" includes a device, brand, heading, label, ticket, name, signature, word, letter or numeral or any combination thereof; is (k) "name" includes any abbreviation of a name; (1) "package" includes any case, box, container, covering, folder, receptacle, vessel, casket, bottle, wrapper, label, band, ticket, reel, frame, capsule, cap, lid, stopper and cork; (m) "permitted use", in relation to a registered trade mark, 20 means the use of a trade mark-(i) by a registered user of the trade mark in relation to goods-(a) with which he is connected in the course of trade; and (b) in respect of which the trade mark remains registered for the time being; and (c) for which he is registered as registered user; and (ii) which complies with any conditions or restrictions to which the registration of the trade mark is subject; 30 (n) "prescribed" means, in relation to proceedings before a high court, prescribed by rules made by the high court, and in other cases, prescribed by rules made under this act; (0) "register" means the register of trade marks referred to in section 6~ 3s (p) "registered" (with its grammatical variations) means registered under this a<:t, (q) "registered proprietor", in relation to a trade mark, means the person for the time being entered in the register as proprietor of the trade mark; (r) "registered trade mark" means a trade mark which is actually on the register; 5 (s) "registered user" means a person who is for the time being registered as such under section 49; (t) "registrar" means the registrar of trade marks referred to in section 4; (u) "trade description" means any description, statement 10 or other indication, direct or indirect,-(i) as to the number, quantity, measure, gauge or weight of any goods; or r (ii) as to the standard of quality of any goods, according to a classification commonly used or recognised in the is trade; or (iii) as to fitness for the purpose, strength, performance or behaviour of any goods, being "drug!?" as defined in the drugs act, 1940, or "articles of food" as defined in the pre-23 or 194°· vention of food adulteration act, 1954; or 20 37 of 1954 (iv) as to the place oi" country in which or the time at wpich any goods were made or produced; or (v) as to the name and address or other indication of the identity of the manufacturer or of the person for whom the goods are manufactured; or 25 (vi) as to the mode of manufacture or producing any goods; or (vii) as to the material of which any goods are composed; or i i (viii) as to any goods being the subject of an existing 30 patent, privilege or copyright; and includes--(a) any description as to the use of any mark which according to the custom of the trade is commonly taken to be an indication of any of the' above matters; 35 (b) the description as to any imported goods contained in a bill of entry or shipping bill; (c) any other description which is likely to be millunderstood or mistaken for all or any of the said matters; (v) "trade mark" means-s (i) in relation to chapter x (other than section 81), a registered trade mark or a mark used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right as proprietor to use the mark; and 10 (ii) in relation to the other provisions of this act, a mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right, either as proprietor or as registered user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark registered as such under the provisions of chapter viii; 20 (w) "transmission" means transmission by operation of law, devolution on the personal representative of a deceased person and any other mode of transfer, not being assignment; (x) "tribunal" means the registrar or, as the case may be, the high court before which the proceeding concerned is pending! (2) in this act, any reference-2s (a) to the use of a mark shall be construed as a reference to the use of a printed or other visual representation of the mark; (b) to the use of a mark in relation to goods shall be construed as a reference to the use of the mark upon, or in any physical or in any other relation whatsoever, to such goods; 30 (c) to a registered trade mark shall be construed as including a reference to a trade mark registered in part a of the register or part b of the register as the case may be; (d) to the registrar shall be construed as a reference to any officer when discharging the functions of thp registrar in 35 pursuance of sub-section (2) of section 4; (e) to the trade marks registry shall be construed as including a reference to any branch office of the trade marks registry high c?u~t 3 the high court having jurisdiction under this act shall be ~r~~,un8- the high court within the limits of whose appellate jurisdiction the trade marks registry referred to in each of the following cases is situate, namely:-(a) in relation to a trade mark on the register of trade marks s at the commencement of this act, the trade marks registry within whose territorial limits the principal place of business in india of the proprietor of the trade mark as entered in the register at such commencement is situate; (b) in relation to a trade mark for which an application for 10 registration is pending at or is made on or after the commencement of this act, the trade marks registry within whose territorial limits the principal place of business in india of the applicant as disclosed in his application is situate; (c) in relation to a trade mark registered in the names of 15 joint proprietors before the commencement of this act, the trade marks registry within whose territorial limits the principal place of business of the proprietor whose name is entered first in the register at such commencement as having such place of business is situate; 20 (d) in relation to a trade mark for which an application for registration in the names of joint proprietors is pending at or is made on or after the commencement of this act, the trade marks registry within whose territorial limits the principal place of business in india of the proprietor whose name is first 25 mentioned in the said application as having such place of business is situate; (e) where the registered proprietor or the applicant for registration as aforesaid has no place of business in india or where none of the jointly registered proprietors or none of the 30 joint applicants as aforesaid has any place of business in india, the trade marks registry within whose territorial limits-(i) in reletion to a trade mark on the register of trade marks at the commencement of this act, the place mentioned in the address for service in india as entered in the register 3s at such commencement; (ii) in relation to a trade mark for which an application for registration is pending at or is made on or after such commencement, the place mentioned in the address for service in india as specified in the application; 40 is situate  chapter ii the register and conditions for registration4 (1) the person for the time being appointed by the central registrar ot government to perfonn the functions of the controller of patents trade marlts 5 and designs shall be the registrar of trade marks for the purposes of this act and shall be known as the controller-general of patents, designs and trade marks (2) the central government may appoint as many deputy registrars and assistant registrars of 'frade marks and other 10 officers with such designations as it thinks fit for the purpose of discharging, under the superintendence and direction of the registrar, such functions of the registrar under this act as he may from time to time authorise them to discharge 5 (1) for the purposes of this act there shall be e6tamished a trade 15 registry which shall be known as the trade marks registry marks registry and (2) the head office of the trade marks registry shall be at ~"!::r~ bombay, and for the purpose of facilitating the registration of trade marks, there shall be established at calcutta and at such other places as the central government may think fit branch offices 20 of the trade marks registry (3) the central government may, by notification in the official gazette, define the territorial limits within which a trade marks registry may exercise its functions (4) there shall be a seal of the trade marks registry 25 6 (1) for the purposes of this act, a record called the register th r  e egisof trade marks shall be kept at the head office of the trade marks ter of trade registry, wherein shall be entered all registered trade marks with marks the names, addresses and descriptions of the proprietors, notifications of assignments and trensmissions, the names, addresses and descrip-30 tions of registered users, disclaimers, conditions, limitations and such other matters relating to registered trade marks as may be prescribed (2) no notice of any trust, express or implied or constructive, shall be entered in the register and no such notice shall be receiv-35 eble by the registrar (3) subject to the superintendence and direction of the central government, the register shall be kept under the control and management of the registrar (4) there shall be kept at each branch of the trade marks registry a copy of the register and such of the other documents mentioned in section 126 as the central government may, by notification in the official gazette, direct 7 (1) the register referred to in section 6 shall be divided into 5 two parts called respectively part a and part b part a idd pan bol the register (2) the register of trade marks existin"g at the commencement of this act shall be incorporated with and form part of part a of the register, and this part shall comprise all trade marks entered in the register of trade marks existing at the commencement of 10 this act and all trade marks which after such commencement may be entered in part a of the register (3) part b of the register shall comprise all trade marks which after the commencement of this act may be entered in part b of the register 15 r~~n a (1) a trade mark may be registered in respect of any or all of ~ ;;:ti: the goods comprised in a prescribed class of goods cular goode (2) any question arising as to the class within which any goods fall shall be determined by the registrar whose decision in the matter shall be final 20 9, (1) a trade mark shall not be registered in part a of the register unless it contairu; or consists of at least one of the following essential particulars, namely:-requisites for reptracion in pane aandbof the reaister (4) the name of a company, individual or firm represented in a special or particular manner; 25 (b) the signature of the applicant for registration or some predecessor in his business; (c) one or more invented words; (d) one or more words having no direct reference to the character or quality of the goods and not being, according to its 30 ordinary signification, a geographical name or a surname or a personal name or any common abbreviation thereof or the name of a sect, caste or tribe in india; (e) any other distinctive mark (2) a name, signature or word, other than such as fall within 35 the descriptions in clauses (4), (b), (c) and (d) of sub-section (1) shall not be registrable in part a of the register except upon evidence of its distinctiveness (3) for the purposes of this section, the expression udistinctive" in relation to the goods in respect of which a trade mark is proposed to be registered, means adapted to distinguish goods with which the proprietor of the trade mark is or may be connected in the course s of trade from goods in the case of which no such connection subsists either generally or, where the trade mark is proposed to be registered subject to limitations, in relation to use within the extent of the registration (4) a trade mark shall not be registered in part b of the 10 register unless the trade mark in relation to the goods in respect of which it is proposed to be registered is distinctive, or is not distinctive but is capable of distinguishing goods with which the proprietor of a trade mark is or may be connected in the course at trade from goods in the case of which no such connection subsists, is either generally or, where the trade mark is proposed to be registered subject to limitations, in relation to use within the extent of the registmtion (5) in determining whether a trade mark is distinctive or is capable of distinguishing as aforesaid, the tribunal may ha\"'e regard ~ to the extent to which-(4) a trade mark is inherently distinctive or is capable of distinguishing as aforesaid; and (b) by reason of the use of the trade mark or of any other circumstances, the trade mark is in fact so adapted to disas tinguish or is in fact capable of distinguishing as aforesaid (6) su9ject to the other provisions of this se<:tion, a trade mark in respect of any goods-(a) registered in part a of the register may be registered in part b of the register; and 30 (b) registered in part b of the register may be registered in part a of the register; in the name of the same proprietor of the same trade mark or any part or parts thereof 10 (1) a trade mark may be limited wholly or in part to one limitation 35 or more specified colours, and any such limitation shall be' taken a to colour into consideration by any tribunal having to decide on the distinctive eharacter of the trade mark (2) so far as a trade mark is registered without limitation of eolour it shall be deemed to be registered for all colours 40 11 a mark-prohibition of regist rl-- dod of cer-(a) the use of whlch would be likely to deceive or cause tain mara coftfua1onj or (b) the use of which would be contrary to any law for the time being in force; or (c) which comprises or contains scandalous or obscene matter; or (d) which comprises or contains any matter likely to hurt 5 the religious susceptibilities of any class or section of, the citizens of india; or (e) which would otherwise be disentitled to protection in - court; shall not be registered as a trade mark 10 ~r::!~~ 12 (1) save as provided in sub-section (3), no trade mark shall t!0n of iden- be registered in respect of any goods or description of goods which ;:!~~vely is identical with or deceptively similar to a trade mark which is aimilar trade already registered in the name of a different proprietor in respect marks of the same goods or description of goods 15 (2) where separate applications are made by different persons to be registered as proprietors respectively of trade marks which are identical or nearly resemble each other in respect of the same goods or description of goods, the registrar may defer the consideration or acceptance of the application or applications bearing 20 a later date until after the determination of proceedings in respect of the earlier application (3) in case of honest concurrent use or of other special circumstances which, in the opinion of the registrar, make it proper so to do, he may permit the registration by more than one proprietor 25 of trade marks which are identical or nearly resemble each other (whether any such trade mark is already registered or not) in respect of the same goods or description of goods, subject to such conditions and limitations, if any, as the registrar may think fit to impose 30 13 (1) no word which is the commonly used and accepted name of any single chemical element or single chemical compound (as distinguished from a mixture) shall be registered as a trade mark in respect of a chemical substance or preparation, and any such registration shall, notwithstanding anything in section 32, be deemed 3s for the purposes of section 56 to l>e an entry made in the register without sufficient cause or an entry wrongly remaining on the register, as the circumstances may require (2) this section shall not apply to a word which is used to denote only a brand or make of the element or compound 'is· made 40 by the proprietor or a registered user of the trade mark, as distinguished from the element or compound as made by others, and in association with a suitable name or description open to the public use s 14 where an application is made for the registration of a trade use o~and mark which consists of or contains the name or a representation of =:entaa living person or of a person whose death took place within twenty ?ona of uv- h d f li  f  t' f th d mg penons years pnor to t e ate 0 app catlon or reglstra lon 0 e tra e or penons 10 mark, the registrar may, before he proceeds with the application, d:=crtly require the applicant to furnish him with the consent in writing of such living person or, as the case may be, of the legal representative of the deceased person to the name or representation appearing on the trade mark, and may refuse to proceed with the application unless the applicant furnishes the registrar with such consent 15 15 (1) where the proprietor of a trade mark claims to be entitled registration to the exclusive use of any part thereof separately, he may apply ~~s:r::;~8 to register the whole and the part as separate trade marks and of trade mark ••• a (2) each such separate trade mark shall satisfy all the conditions series applying to, and have all the incidents of, an independent trade 20 mark (3) where a person claiming to be the proprietor of several trade marks in respect of the same goods or description of goods which, while resembling each other in the material particulars thereof, yet differ in respect ofls (a) statements of the goods in relation to which they are respectively used or proposed to be used; or (b) statements of number, price, quality or names of places; or (c) other matter of a non-distinctive character which does 30 not substantially affect the identity of the trade mark; or (d) colour; seeks to register those trade marks, they may be registered as a aeries in one registration 16 (1) where a trade mark which is registered, or is the subject registration 3s of an application for registration, in respect of any goods is identi- :::de cal with another trade merk which is registered, or is the subject as associated of an application for registration, in the name of the same trade marks proprietor in respect of the same goods or description of goods or so nearly resembles it as to be likely to deceive 40 or cause confusion if used by a person other than the proprietor, the registrar may, ,at any time, require that the trade marks shall be • entered on the register as associated trade marks (2) where a trade mark and any part thereof are, in aecordanee with the provisions of sub-section (1) of section 15, registered u separate trade marks in the name of the same proprietor, they mall be deemed to be, and shall be registered as, associated trade marks  (3) all trade marks registered in accordance with the provisiodi 5 of bub-section (3) of section 15 as a series in one registration shall be deemed to be, and shall be registered as, associated trade marlu (4) on application made in the prescribed manner by the registered proprietor of two or more trade marks registered as associated trade marks, the registrar may dissolve the association as res- 10 pects any of them if he is satisfied that there would be no likelihood of deception or confusion being caused if that trade mark were used by any other person in relation to any 'of the goods in respect of which it is registered, and may amend the register accordingly is  1'1 if a trade mark- (a) contains any part-rqiatntiad of trade marb sub feet to dij claimer (i) which is not the subject of a separate application by ,the proprietor for registration as a trade mark; or (ii) which is not separately registered by the proprietor as a trade mark; or 20 (b) contains any matter which is common to the trade or is otherwise of a non-distinctive character; the tribunal, in deciding whether the trade mark shall be entered or shall remain on the register, may require, as a condition of its being on the register, that the proprietor shall either disclaim any 25 right to the exclusive use of such part or of all or any portion of such matter, as the case may be, to the exclusive use of which the tribunal holds him not to be entitled, or make such other disclaimer as the tribunal may consider necessary for the purpose of defining the rights of the proprietor under the registration: 30 provided that no disclaimer shall affect any rights of the proprl  tor of a trade mark except such as arise out of the registration of the trade mark in respect of which the disclaimer is made  chapteriu procedure for and duration of registration18 (1) any person claiming to be the proprietor of a trade mark applic;~tiod used or proposed to be used by him who is desirous of registering it ~o~n,el1l[ia­s shall apply in writing to the registrar in the prescribed manner for the registration of his trade mark either in part a or in part b of the register (2) an application shall not be made in respect of goods comprised in more than one prescribed class of goods 10 (3) every application under sub-section (1) shall be filed in the trade marks registry within whose territorial limits the principal place of business in india of the applicant or in the case of joint applicants the principal place of business in india of the applicant whose name is first mentioned in the application, as having a place 15 of business in india, is situate: provided that where the applicant or none of the applicants carries on business in india, the application shall be flied in the trade marks registry within whose territorial limits the place mentioned in the address for service in india as disclosed in the 30 application, is situate (4) subject to the provisions of this act, the registrar may refuse the application or may accept it absolutely or subject to such amendments, modifications, conditions or limitations, if any, as he rna, think fit ~s (5) in the case of an application for registration of a trade mark (other than a certification trade mark) in part a of the register, the registrar may, if the applicant so desires, instead of refusing the application, treat it as an application for registration in part b of the regilter and deal ~th the application accordingly 30 (6) in the case of a refusal or conditional acceptance of an epplieation the registrar shall, if so required by the applicant, state in writing the grounds for such refusal or conditional acceptance and the materials used by him in arriving at his decision 19 where, after the acceptance of an application for registration withdrawal 35 of a trade mark but before its registration, the registrar is satisfted- :!!ccept-(a) that the application has been accepted in error; or (b) that in the circumstances of the case the trade mark should not be registered or should be registered subject to conditions or llmitat10lls or to conditions additional to or different from the conditions or limitations subject to which the application has been accepted; the registrar may, after hearing the applicant if he so desires, withdraw the acceptance and proceed as if the application had not 'been accepted 5 advertisement of application 20 (1) when an application for registration of a trade mark hu been accepted, whether absolutely or subject to conditions or limitations, the registrar shall, as soon as may be after acceptance, cause the application as accepted together with the conditions or limitations, if any, subject to which it has been accepted, to be advertised 10 in the prescribed manner: provided that the registrar may cause the application to be advertised before acceptance if it relates to a trade mark to which sub-section (2) of section 9 applies or in any other case where it appears to him that it is expedient by reason of any exceptional 15 circumsmnces so to do (2) where---(a) an application has been advertised before acceptance under sub-section (1); or (b) after advertisement of an application-30 (i) an error in the application has been corrected; or (ii) the application has been permitted to be amended under section 22; the registrar may in his discretion cause the application to be advertised again or, in any case falling under clause (b) may, instead of 2s causing the application to be advertised again, notify in the prescribed manner the correction or amendment made in the application oppositioll to replt:atiod 21 (1) any person may, within three months from the date of the advertisement or re-advertisement of an application for regis- 30 tration, give notice in writing in the prescribed manner to the registrar, of opposition to the registration (2) the registrar shall serve a copy of the notice on the· applicant for registration and, within two months from the receipt by the applicant of such copy of the notice of opposition, the applicant 3s shall send to the registrar in the prescribed manner a counter-statement  of the grounds on which he relies for his application, and if he dcfesnot do so he shall be deemed to he\'\! abandoned his appiicatton (3) if the applicant sends such counter-statement the registrar shall serve a copy thereof on the person giving notice of opposition (4) both the opponent and the applicant shall be given an opportunity to submit in the prescribed manner the evidence upon which 5 they rely and to be heard by the registrar if they so desire (5) the registrar shall, after hearing the parties, if so required, and considering the evidence, decide whether and subject to what conditions or limitations, if any, the registration is to be permitted, and may take into account a ground of objection whether relied upon to by the opponent or not (6) where a person giving notice of opposition or an applicant sehding a counter-statement after receipt of a copy of such notice neither resides nor carries on business in india, the registrar may require him to give security for the costs of proceedings before him, 15 and in default of such security being duly given, may treat the opposition or application, as the case may be, as abandoned zz the registrar may on such terms as he thinks just-correction and amendment (a) at any time, whether before or after acceptance of an application for registration under section 18, permit the correction of any error in or in connection with the application or permit an amendment 'of the application; or (b) permit correction of any error in, or the amendment of, a notice of opposition or a counter-statement under section 21 23 (1) subject to the provisions of section 19, when an applica- registration 25 tion for registration of a trade mark in part a or part b of the register has been accepted and either-(a) the application has not been opposed and the time for nptice of opposition has expired~ or (b) the application has been opposed and the opposition has 30 been decided in favour of the applicant; the registrar shall, unless the central government otherwise directs, register the said trade mark in part a or part b of the register, as the case may be, and the trade mark when registered shall be registered'as of the date of the making of the said application and that 35cbte shall, subject to the provisions of section 131, be deemed to be the date of registration (~) on the registration of a trade mark, the registrar shall issue to the applicant a certificate in the prescribed form of the regiatra tion thereof sealed with the seal of the trade marks registry (3) where registration of a trade mark is not completed within twelve months from the date of the application by reason of default 5 on the part of the applicant, the registrar may, after giving notice to the applicant in the prescrioed manner, treat the application as abandoned unless it is completed within the time specified in that behalf in the notice (4) 'i1le registrar may, on 8ueh terms as he thinks just, amend 10 the register or a certificate of registration for the purpose of correcting a clerical error or an obvious mistake j= trade u (1) save as provided in sub-section (2) nothing in this act ~ub shall authorise the registration of two or more persons who use a trade mark independently, or propose so to use it, as joint prol'rie- 15 tors thereof - (2) where the relations between two or more persons interested in a trade mark are such that no one of them is entitled as between himself and the other or others of them to use it except-(a) on behalf of both or all of them; or 20 (b) in relation to an article with which both or all of them are' connected in the course of trade; those persons may be registered as joint proprietors of the trade mark, and this act shall have effect in relation to any rights to the use of the trade mark vested in those persons as if those rights had 25 been vested in a single person duration 15 (1) the re~stration of a trade mark shall be for a period of renewal and  dan rettgration seven years, but may be renewed from time to tune in accor ce of repra· with the provisions of this section tion (2) the registrar shall, on application made by the registered 30 proprietor of a trade mark in the prescribed manner and within the prescribed period and subject to the prescribed conditions, renew the registration of the trade mark for a period of seven years from the date of e¥piration of the original registration or of the last renewal of registration, as the case may be (which date is in this section 35 referred to as the expiration of the last registration) (3) at the prescribed time before the expiration of tile lut registration of a trade mark the registrar shall send notice in the pres cribed manner to the registered proprietor of the date of expiratlol'l and the conditions as to payment of fees and otherwise upon which a renewal of registration may be obtained, and, if at the expiration 'jf the time prescribed in that behalf those conditions have not been duly complied with, the registrar may remove the trade mark from s the register (4) where a trade mark has been removed from the register for non-payment of the prescribed fee, the registrar may, within one year from the expiration of the last registration of the trade mark, on receipt of an application in the prescribed form, if satisfied that 10 it is just so to do, restore the trade mark to the register and renew the registration of the trade mark either generally or subject to such conditions or limitations as he thinks fit to impose, for a period of seven years from the expiration of the last registration 26 where a trade mark has been removed from the register for :0: g-is failure to pay the fee for renewal, it shall nevertheless, for the pur- ~l1ierfor pose of any application for the registration of another trade mark pay~ %r during one year next after the date of the removal, be deemed to be renewal a trade mark already on the register, unless the tribunal is satisfied either-~o (a) that there has been no bona fide trade use of the trade mark which has been removed during the two years immediately preceding its removal; or (b) that no deception or confusion would be likely to arise from the use of the trade mark which is the subject of the appll-~5 cation for registration by reason of any previous use of the trade mark which has been removed  chapter iv effect of registration27 (1) no person shall be entitled to institute any proceeding to no ~ 30 prevent, or to recover damages for, the infringement of an unregis- !":n~ tered trade mark unregistered trade mark (2) nothing in this act shall be deemed to affect rights of action against any person for passing oft goods as the goods of another person or the remedies in respect thereof 3s 28 (1) subject to the other provisions of this act, the registration ~!? bcod-of a trade mark in part a or part b of the register shall, if valid, give ~trajod to the registered proprietor of the trade mark the exclusive right to the use of the trade mark in relation to the goods in respect of which the trade mark is registered and to obtain relief in respect of 40 infringement of the trade mark in the manner provided by thi8 act (2) the exclusive right to the use of a trade mark given under sub-section (1) shall be subject to any conditions and limitations to which the registration is subject (3) where two or more persons are proprietors of trade mara registered un~er this act, which are identical with or nearly resem- 5 ble each other, the exclusive right to the use of any of those trade marks shall not (except so far as their respective rights are subject to any conditions or limitations entered on the register) be deemed to have been acquired by anyone of those persons as against any other of those persons merely by registration of the trade marks but 10 each of those persons has otherwise the same rights as against other persons (not being registered users using by way of permitted use) as he would have if he were the sole registered proprietor i~ 21 (1) a regiatered trade mark is infringed by a person who, not = 1dub being the registered proprietor of the trade mark or a registered is user thereof using by way of permitted use, uses a mark which is identical with, or deceptively similar to, the trade mark, in the course of trade, in relation to any goods in respect of which the trade mark is registered (2) in an action for infringement of a trade mark registered in 20 part b of the register an injunction or other relief shall not be granted to the plaintiff if the defendant establishes to the satisfaction of the court, that the use of the mark of which the plaintiff complains is not likely to deceive or cause confusion or to be taken as indicating a connection in the course of trade, between the goods in respect of 25 which the trade mark is registered and some person having the right, either as registered proprietor or as registered user, to use the trade mark acta net 30 (1) notwithstanding anything contained in this act, the =~ following acta do not constitute an infringement of the right to the 30 - n use of a registered trade mark:-(a) where a trade mark is registered subject to any conditions or limitations, the use of the trade mark in any manner in relation to goods to be sold or otherwise traded in, in any place, or in relation to goods to be exported to any market, or 3s in any other circumstances, to which, having regard to those conditions or limitations, the registration does not extend; (b) the use by a person of a trade mark in relation to goocla connected in the course of trade with the proprietor or a regi8-tered user of the trade mark if, 88 to thoee goods or a bulk of 40 which they form part, the registered proprietor or the registered user conforming to the pennitted use has applied the trade mark and has not subsequently removed or obliterated it, or has at any time expressly or impliedly consented to the use of the trade mark; 5 10 (c) the use of a trade mark by a person in relation to goods adapted to form part of, or to be accebsory to, other goods in relation to which the trade mark has been used without infringement of the right given by registration under this act or might for the time being be so used if the use cd the trade mark is reasonably necessary in order to indicate that the goods are so adapted, and neither the purpose nor the etject of the use of the trade mark is to indicate, otherwise than in accordance with the fact, a connection in the course of trade between any person and the goods; is (d) the use of a registered trade mark, being one of two or more trade marks registered under this act which are identical or nearly resemble each other, in exercise of the right to the use of that trade mark given by registration under this act 20 (2) where the goods bearing a registered trade-mark are lawfully acquired by a person, the sale of or other dealings in those goods by that person or by a person claiming under or through him is not an infringement of the trade mark by reason only of the trade mark having been assigned by the registered proprietor to some other 25 person after the acquisition of thole goods 31 (1) in all legal proceedings relating to a trade mark regis-  tered under this act (including applications under section 56) i the !c~trtjofi original registration of the trade mark and all subsequent auign- tri-focu ments and transmissions of the trade mark shall be prima facie :ltd?; of 30 evid~nce of the validity thereof (2) in all legal proceedings as aforesaid a trade mark registered in part a of the register shall not be held to be invalid on the ground that it was not a registrable trade mark under section 9 except upon evidence of distinctiveness and that such evidence was not submitted to the registrar before the date of registration, if it is proved that 35 the trade mark had been so used by the registered proprietor or his predecessor in title as to have become distinctive at the date of reptration rqiatratiod u subject to the provisions of section 35, in all legal proceed· ~~vebe uco~u ings relating to a trade mark registered in part a of the register validity after (including applications under section 56), the original registration lcved yeua of the trade mark shall, after the expiration of seven years from the date of such registration, be taken to be valid in all respects unle&l 5 it la proved-(4) that the original registration was obtained by fraud; or (b) that the trade mark was registered in contravention of the provisions of section 11 or offends against the provisions of ,thatlection on the date of commencement of the proceedings; or 10 (c) that the trade mark was not, at the commencement of the proceedings, distinctive of the goods of the registered proprietor savina for 33 nothing in this act shall entitle the proprietor or a registered vetted riahtl user of a registered trade mark to interfere with or restrain the use is by any person of a trade mark identical with or nearly resembling it in relation to goods in relation to which that person or a predecessor in title of his has continuously used that trade mark from a date prior-(a) to the use of the first-mentioned trade mark in relation 20 to those gooda by the proprietor or a predecessor in title of his; or (b) to the registration of the first-mentioned trade mark in respect of those goods in the name of the proprietor or a predecessor in title of his; 3, whichever is the earlier, and the registrar shall not refuse (on such use being proved) to register the second-mentioned trade mkk by reason only of the registration of the first-mentioned trade mark sa::! for 34 nothing in this act shall entitle the proprietor or a registered :: name, user of ,a registered trade mark to interfere with any bona fide use 30 or dr:':rip-by 9 person of his own name or that of his place of business; or of don of pods the name, or of the name of the place of business, of any of his predecessors in business, or the use by any person of any bona fide description of the character or quality of his goods saving for 35 (1) the registration of a trade mark shall not be deemed to 3' word wed have become invalid by reason only of any use after the date of the u name or delcriptiod registration of any word or words which the trade mark contains or of &nb8rticle of which it consists as the name or description of an article or subor au stance stance: provided that, if it is proved either-(0) that there is a well-known and established use of the said word as the name or description of the article or substance by a person or persons carrying on a trade therein, not being 5 use in relation to goods coiulected in the course of trade with the proprietor or a registered user of the trade mark or (in the case of a certification trade mark) goods certified by the proprietor; or (b) that the article or substance was formerly manufactur-10 ed under a patent, that a period of two years or more after the cesser of the patent has elapsed, and that the said word is the only practicable name or description of the article or substance; -the provisions of sub-section (2) shall apply (2) where the facts mentioneq in clause (a) or clause (b) of the i,provlso to sub-section (1) are proved with respect to any words, then-(a) for the purposes of any proceedings wlder section 56-(i) if the trade mark consists solely of such words, the registration of the trade mark, so far as regards registration in respect of the article or substance in question or of any goods of the same description, shall be deemed to be an entry wrongly remaining on the register; (ii) if the trade mark contllins such words and other matter, the tribunal in deciding whether the trade mark shall remain on the register, so far as regards registration in ~5 respect of the article or substance in question and of any goods of the same description, mey, in case of a decision in favour of its remaining on the register, require as a condition thereof that the proprietor shall disclaim any exclusive right to the use in relation to that article or substance and any 30 goods of the same description, of such words: provided that no disclaimer shall affect any rights of the proprietor of a trade mark except such as arise out of the registration of the trade mark in respect of which the disclaimer is 3' made; (b) for the purposes of any other legal proceeding relating to the trade mark,-(i) if the trade mtbrk consists solely of such worcij, all rights of the proprietor under this act or any other law to 40 the use of the trade mark in relation to the article or jub-itance in question or to any goods of the same deaeriptiod; or (ii) if the trade mark contains such words· and other matter, all such rights of the proprietor to the use of such words, in such relation as aforesaid; shall he deemed to have ceased on the date at which the use mentioned in clause (a) of the proviso to sub-section (1) first became 5 well-known and established, or at the expiration of the period of two years mentioned in clause (b) of the said proviso ' _ "( chapter v  assignment and transmissionhwcr of rc-36 the person for the time being entered in the register as pro- 10 =or to prietor of e trade mark shall, subject to the provisions of this act ~ ~ and to any rights appearing from the register to be vested in any other person, have power to assign the trade mark, and to give effectual receipts for any consideration for such assignment auiubility 37 (1) notwithstanding anything in any other lew to the con- is :: trary, a registered trade mark shall, subject to the provisions of this o~ft8lam::s! chapter, be assignable end transmissible, whether with or without t c  the goodwill of the business concerned and in respect either of all the goods in respect of which the trade mark is registered or of some only of those goods 20 (2) subject to the provisions of sub-sections (3) end (4), an assignment of a registered trade mark without the goodwill of the business made after the commencement of this act shall be invalid if a mark identical with, or deceptively similar to the trade mark, continues to be used by the assignor after the assignment in relation 25 to goods not belonging to the assignee, where there exists a connection in the course of trade between those goods and the assignor and where those goods are the same or of the same description in respect of which the trade mark has been assigned, or of such a d~cription dlat the public is likely to be deceived by the use of the trade mark 30 by the assignor and assignee upon their respective goods (3) an assignment of a trade mark made after the commencement of this act shall not be invalid if at the date of the institution of any proceedings in which the validity of the assignment is called in question, the trade mark has come to denote to the public a con- 35 n«tion in the course of trade· between the goods and the assignee to the f'xclusion of all other persons, or, if the i"egistration is limited 10 a specified area, to the exclusion of all other persons within that  (4) an assignment of a trade mark shall not be held to be invalid except in proceedings instituted within three years after the registration of the assignment (5) all rights subsisting in a registered trade mark, whether 5 under this act or otherwise, on the date of the assignment of the - trade mark shall subject to the conditions and limitations, if any, of the assignment, be deemed to be assigned upon the registration of the assignment of the tmde mark 38 (1) an unregistered trade mark shall not 10 transmissible except along with the goodwill concerned be assignable or !::iiitj of the businea mlllibiitj ofudftlilterecl tndc (2) notwithstanding anything contained in sub-section (1), an mub unregistered trade mark may be assigned or transmitted otherwise than along with the goodwill of the business concerned 1£-(a) at the time of assignment or transmission of the unregistered trade mark, it is used in the same business as a registered trade mark; and (b) the registered trade mark is assigned or transmitted at the same time and to the same person as the unrelfstered 20 trade mark; and (c) the unregistered trade mark relates to goods in respect of which the registered trade mark is assigned or transmitted 39 (1) notwithstanding anything in section 37 and section 38, a ilauictiaas trade mark shall not be assignable or transmissible in a case in :id~-2s which as a result of the assignment or transmission there would in trmwnt-;r the circumstances subsist, whether under this act or any other law, ;~':c-:a':; ~xclusivf rights in more than one of the persons concerned to the bclt~d nse, in relation to the same goods or description of goods, of trade  marks nearly resembling each other or of identical tnlde rwks, if 30 having regard to the similarity of the goods and of the trade1harb, the use of the trade marks in exercise of those rights would be likely to deceive or cause confusion: provided that an assignment or transmission shell not be deemed to be invalid under this sub-section if the exclusive rights 8ubsfltlng '5 as a result thereof in the persons concerned respectively are, having regard to limitations imposed thereon, such as not to be exercisable by two or more of those persons in relation to goods to be sold, or otherwise traded in, within india otherwise than for export therefrom, or in relation to goods to be exported to the same market ou tside india (2) the proprietor of a registered trade mark who proposes to assign it may submit to the registrar in the prescribed manner a s statement of case setting out the circumstances and the registrar may issue to him a certificate stating whether, having regard to the sinlilarity of the goods and of the trade marks referred to in the case, the proposed assignment would or would not be invalid under sub-section (1), and a certificate so issued shall, subject to appeal and 10 unless it is shown toot the certificate was obtained by fraud or misrepresentation, be conclusive as to the validity or invalidity under sub-section (1) of the assignment in so far as such validity or invali-dity depends upon the facts set out in the case, but, as regards a certificate in favour of validity, only if epplication for the registra- i, tion under section 44 of the title of the person becoming entitled is mad~ within six months from the date on which the certificate fa issued rcatric:tiolll 40 notwithstanding anything in section 37 and section 38, a =_~-trade mark shall not be assignable or transmissible in a cue in 20 tlmllllillion which as a result of the assignment or transmission there would tn ::ori~- the circumstances subsist, whether under this act or any other law, would be an exclusive right in one of the persons concerned to the use of the :::::n trade mark limited to use in reletion to goods to be sold, or othere of wise traded in, in any place in india and an exclusive right in 2s l another of these persons to the use of a trade mark nearly resembling the first-mentioned trade mark or of an identical tmde mark in relation to the same goods or description of goods limited to use in relation to goods to be sold, or otherwise traded in, in any other place in india: 30 provided that in any such case, on application in the prescribed manner by the proprietor of a trade merk who proposes to assign it, or by a person who claims that a registered trade mark has been transmitted to him or to a predecessor in title of his since the commencement of this act, the registrar, if he is satisfied that in all 35 the circumstances the use of the trade mark in exercise of the said rights would not be contrary to the public interest, may approve the assignment or transmission, and an assignment or transmission 80 approved shall not, unless it is shown that the approval vms obtained by fraud or misrepresentation, be deemed to be invalid under thb 40 section or section 39 if application for the registration under section 44 of the title of the person becoming entitled is made within six months from the date on which the approval is given or, in the cue ofa trensmlssion, was made before that date 41 where an assignment of a trade mark, whether registered or condit;iods unregistered, is made otherwise than in connection with the goodwill :~:t·~f~­of the business in which the mark is used, the assignment shall not ~ie than take effect unless the assignee, not later than the expiration of six ~o:=:-5 months from the date on which the assignment is made or within the goodwill such (:xt£'nded period, if any, as the registrar may allow, applies to of a buaineaa the registrar for directions with respect to the advertisement of the assignment, and advertises it in such form and manner and within such period as the registrar may direct , 10 explanation-for the purposes of this section an assignment of - a trade mark of the following description shall not be deemed to be an assignment made otherwise than in connection with the goodwill of ihe business in which the mark is used, namely:-(a) an assignment of a trade mark in respect only of some 15 of the goods for which the trade mark is registered accompanied by the transfer of the goodwill of the business concerned in those goods only; or (b) an assignment of a trade mark which is used in relation to goods exported from india if the assignment is accompanied ~o by the transfer of the goodwill of the export business only 42 a certificetion trade mark shall not be assignable or trans- aisignabilimissible otherwise than with the consent of the central government, ~i:i~i~ft~s­for which application shall be made in writing in the prescribed ot certificamanner through the retristrar hon trade e, - marks 25 43 associated trade marks shall be assignable and transmissible assignability only as a whole and not separately, but, subje'ct to the provisi<lns of :!~bili:; this act, they shall, for all other purposes, be deemed to have been of aaaociated registered as separate trade marks trade marks \ ·14 (1) where a person becomes entitled by assignment or trans- registration 30 mission to a registered trade mark, he shall apply in the prescribed of asslgn-r manner to the registrar to register his title, and the registrar shall, ~e:~i~ on receipt of the application and on proof of title to his satisfaction, sions register him as the proprietor of the trade mark in respect of the goods in respect of which the assignment or transmission has effect, 3s and fhall cause particulars of the assignment or tmilsmission to be entered on the register (2) except for the purpose of an application before the registrar under rub-section (1) or an appeal from an order thereon, or an application under section 56 or an appeal from an order thereon, a 40 -jocument or instrument in respect of which no entry has been made in the relister in accordance with sub-section (1), shall not be admitted in evidence by the registrar or any court in proof of title to the trade mark by assignment or transmission unless the re,utrar or the court, as the case may be, otherwise directs  chapi'ervi use of 'l'rade marks and registered userspropoaed usc of trade mark by company to be formed s (1) no appliootion for the registration of a trade mark in respect (if any goods shall be refused, nor shall permission for such registration be withheld, on the ground only that it appears that the applicant does not use or propose to use the trade mark, if the 10 registrar is satisfied that a company is about to be formed and registered under the companies act, 1956, and that the applicant i of 19,6 intends to assign the trade mark to that company with a view to the use thereof in relation to those goods by the company (2) the tribuool may, in a case to which sub-section (1) applies, 15 require the applicant to give security for the costs of any proceedings relative to any opposition or appeal, and in default of such security being duly given may treat the application as abandoned (3) where in a cese to which sub-section (1) applies, a trade mark in respect of any goods is registered in the name of an appli- 20 cant who relies on intention to assign the trade mark to a company, then, unless within such period as may be prescribed, or within such further period not exceeding six months as the registrar may, on application being made to him in the prescribed manner, allow, the company has been registered as the proprietor of the trade mark in 25 respect of those goods, the registration shall cease to have effect in respect thereof at the expiration of that period, and the registrar shall amend the register accordingly removal 46 (1) subject to the provisions of section 47, a registered trade from reljismark may be taken off the register in respect of any of the goods in 30 :=:8::nl~-respect of which it is registered on application in the prescribed limitations on 'found of manner by any person aggrieved to a high court or to the registrar, h  don-usc on t e ground elther-(a) that the trade mark was registered without any bona fide intention on the part of the applicant for registration that 35 it should be used in relation to those goods by him or, in a case to which the provisions of section 45 apply, by the company concerned, and thtat there has, in fact, been no bona fide use of the traae mark in relation to those goods by any proprietor thereof for the time being up to a date one month before the date of 40 the application; or (b) that up to a date one month before the date of the application, a continuous period of five yearli or longer had elapsed during which the trade mark was registered and during which there was no bona fide use thereof in relation to those 5 goods by any proprietor thereof for the time being: provided that, except where the applicant has been permitted under sub-section (3) of section 12 to register an identical or nearly resembling trade mark in respect of the goods in question or where the tribunal is of opinion that he might properly be permitted so to 10 register such a trademark, the tribunal may refuse an application under clause (a) or clause (b) in reletion to any goods, if it is shown that there has been, before the relevant date or during the relevant period, as the case may be, bona fide use of the trade mark by any proprietor thereof for the time being in relation to goods of the 15 same description, being goods in respect of which the trflde mark is registered (2) where in relation to any goods in respect of which a trade mark is registered-(a) the circumstances referred to in clause (b) of subsection (1) are shown to exist so far as regards non-use of the 20 trade mark in relation to goods to be sold, or otherwise traded in, in a particular place in india (otherwise than for export from india), or in relation to goods to be exported to a particular market outside india; and 30 (b) 6 person has been permitted under sub-section (3) of section 12 to register an identical or nearly resembling trade mark in respect of those goods under a registration extending to use in relation to goods to be so sold, or otherwise traded in, or in relation to goods to be so exported, or the tribunal is of opinion that he might properly be permitted so to register such a trade mark; on applioation by that person in the prescribed maiuler to a high court or to the registrar, the tribunal may impose on the registration of the first-mentioned trade mark such limitations as it thinks 35 proper for securing that that registration shall cease to extend to such use (3) an applicant shell not be entiued to rely for the purpose of clause (b) of sub-section (1) or for the purposes of sub-section (2) on any non-use of a trade mark which is shown to have bet>n 40 due to special circumstances in the trade and not to any intention to abandon ot not to use the trade mark in relation to the goods to which the application relates _'  [ ~ defensive 47 (1) where a trade mark consisting of any invented word has registration b 11 kn d' i' hich of wellecome so we -own as respects any goo s m re atlon to w  it known trade is registered and has been used, toot the use thereof in relation to marks other goods would be likely to be taken as indicating a connection in the course of trade between those goods and a person entitled to 5 use the trade mark in relation to the first-mentioned goods, then, notwithstanding that the proprietor registered in respect of the firstmentioned goods does not use or propose to use the trade mark in reletion to those other goods and notwithstanding anything in section 46, the trade mark may, on application in the prescribed man- 10 ner by such proprietor, be registered in his name in respect of those other goods as a defensive tl'ade mark, and while so registered, shall not be liable to be taken off the register in respect of those goods under the said sectien (2) the registered proprietor of !r trade mark may apply for i 5 the registration thereof in respect of any goods as a defensive trade mark notwithstanding that iti! already registered in his name in respect of those goods otherwise than as a defensive trade mark, or jiliqy apply for the registration thereof in respect of any goods otherwise than as a defensive trade mark notwithstanding that it 20 is already registered in his name in respect of those goods as a defensive trade mark, in lieu in each case of the existing registration (3) a trade mark registered as a defensive trade mark and that trade mark as otherwise registered in the name of the sl8me proprietor shall, notwithstanding that the respective registrations are 25 in respect of different goods, be deemed to be and shall be registered as, associated trade marks (4) on qpplication in the prescribed manner by any person aggrieved to a high court or to the registrar, the registration of a trade mark as a defensive trade mark may be cancelled on the 30 ground that the requirements of sub-section (1)' are no longer satisfied in respect of !rny goods in relation to which the trade mark is registered in the name of the same proprietor otherwise than as a defensive trade mark, or may be cancelled as re~pects any goods in relation to which it is registered as a defensive trade mark on the 3s ground that there is no longer any likelihood that the use of the trade mark in relation to those goods would be taken as giving the indication mentioned in sub-section (1) (5) the registrar may at !rny time -cancel the registration as a defensive trade mark of a trade mark of which there is no longer 40 any registration in the name of the same proprietor otherwise than as a defensive trade mark (6) except as otherwise expressly provided in this section, the firov~sions of this act shall apply in respect of the registration of trade marks as defensive trade marks and of trade marks so regis-tered as they apply in other cases 5 48 (1) subject to the provisions of section 49, a person other registered than the registered proprietor of a trade mark may be registered users as the registered user thereof in respect of any or all of the goods in respect of which the trade mark is registered otherwise than as a defensive trade mark; but the central government may, by rulf's 10 made in this behalf, provide that no application for registration as such shall be entertained unless the agreement between the parties is in writing and complies with the conditions laid down in the rules for preventing trafficking in trade marks (2) the permitted use of a trade mark shall be deemed to be use 15 by the proprietor thereof, and shall be deemed not to be use by a person other than the proprietor, for the purposes of section 46 or for any other purpose for which such use is material under this act or any other law 49 (1) where it is proposed that a person should be registered ~pplicaition   or rea stra-20 as a registered user of a trade mark, the reglstered proprietor and the tiona regiaproposed registered user shall jointly apply in writing to the tered user registrar in the prescribed manner, and every such appliciibtion shall be accompanied by-25 (i) the agreement in writing or a duly authenticated copy thereof, entered into between the registered proprietor and the proposed registered user with respect to the permitted use of the trade mark; and (ii) an affidavit made by the registered proprietor or by some person authorised to the satisfaction of the registrar to act on his behalf,-30 35 (a) giving particulars of the relationship, existing or proposed, between the proprietor and the proposed registered user, including particulars showing the degree of control by the proprietor over the permitted use which their relationship will confer and whether it is a term of their relationship that the proposed registered user shall be the sole registered user or that there shall be anyother restriction as to persons for whose registration as registered users application may be made; (b) stating the goods in respect of which registration  proposed; (c) stating the conditions or restrictions, if any, proposed with respect to the characteristics of the goods, to the mode or place of permitted use, or to any other matter; (d) statmg whether the pennitted use is to be for a period or without limit of  period, and, if for a period, the 5 duration thereof; and by such further documents or other evidence as may be required by the registrar or as may be prescribed (2) when the requirements of sub-section (1) have been complied with to his satisfaction, the registrar shall forward the applica- 10 tion together with his report and all the relevant documents to the central government (3) on receipt of an application under sub-section (2), the central government, having regard to all the circumstances of the case and to the interests of the general public, and the development of any 15 industry, trade or commerce in india, may direct the registrar-(a) to refuse the application; or (b) to accept the application either absolutely or subject to any conditions, restrictions or limitations which the central government may think proper to impose; 20 provided that no direction for refusing the application or for its acceptance conditionally shall be made unless the applicant has been liven an opportunity of being heard (4) the registrar shall dispose of the application in accordance with the directions issued by the central government under sub- 2s section (3) (5) the central government and the registrar shall, if so requested by the applicant, take steps for securin'g that information given for the purposes of an application under this' section (othe:-than matters entered in the register) is not disclosed to rivals in 30 trade (6) the registrar shall issue notice in the prescribed manner of the registration of a person as a registered user, to other registered users of the trade mark, if any restrictions on up_tration u re-ittered  en so (1) notwithstanding anything contained in sections 48 and 49,35 and subject to the provisions of sub-section (2), the registration of a registered user shall not be pennissible in a case in which as a result of the registration there would in the circumstances subsist, rights of permitted use in more than three persons concerned in relation to goods to be sold or otherwise traded in, within india, in respect of the same trade mark, or nearly resembling trade marks registered in the name of the same proprietor: 5 provided that nothing in this sub-section shall affect the rights of a registered user already registered as such at the commencement of this act (2) sub-section (1) shall not apply in a case where the registrar is satisfied that-10 (a) the proposed registration of registered user is intended solely in relation to goods for export from india; or (b) that there is common control hletween the business of the registered proprietor and that of the proposed registered user 51 (1) subject to any agreement subsisting between the parties, ;e~is~~:d 15 a registered user of a trade mark shall be entitled to call upon the user to ~ake proprietor thereof to take proceedings to prevent infringement ~~~:~:~ thereof, and if the proprietor refuses or neglects to do so within three fringement months after being so called upon, the registered user may institute proceedings for infringement in his own name as if he were the pro-20 prietor, making the proprietor a defendant (2) notwithstanding anything contained in any other law, a proprietor so added as defendf<nt shall not be liable for any costs unless he enters an appearance and takes part in the proceedings 52 (1) without prejudice to the provisions of section 56, the ~~~~~~ 25 registration of a person as a registered userto vary or cancel registration as registered (a) may be varied by thp registrar as regards the goods in user respect of which or any conditions or restrictions subjec~ to which, it has effect, on the application in writing in the prescribed manner of the registered proprietor of the trade mark to the 30 central government; (b) may de cancelled by the registrar on the application in writing in the prescribed manner of the registered proprietor or of the registered user or of any other registered user of the trade mark; (c) may be cancelled by the registrar on the application in writing in the prescribed manner d any person on any of the following grounds, namely:-(i) that the registered uscr has used the trade mark otherwise than by way of the permitted use, or in such a 5 way as to cause 0r to be likely to cause, deception or confusion; (ii) that the proprietor or the registered user misrepresented, or failed to disclo~e, some fact material to the application for registration, that if accurately represented or 10 disclosed would have justified the registrar in refusing the application for registration of the registered user; (iii) that the circumstances have changed since the date of registration in s'lch a way that at the date of such application for cancellation they would have justified the registrar is in refusing an application for registration of the registered user; (iv) that the registration ought not to have been effected / having regard to rights vested in the applicant by virtue of a contract in the performance of which he is interested; 20 (d) may be cancelled by the reg~strar of his own motion or on the application in writing in the prescribed manner of any person, on the ground that any stipulation in the agreement between the registered proprietor and the registered user regarding the quality of the goods in relation to which the trade mark 25 is to be used is either not being enforced or is not being complied with; (e) may be cancelled by the' registrar in respect of any goods in relation to which the trade mark is no longer registered (2) the registrar shall issue notice in the prescribed manner of 30 every application under this section to the registered proprietor and each registered user (not being the applicant) of the trade mark 53 nothing in this act shall confer on a registered user of a trade mark any assignable or transmissible right to the use thereof regi8tered user not to have right of assignmento~ transmission explanation i-the right of a registered user of a trade mark 3s shall not be deemed to have been assigned or transmitted within the meaning of this section in the following cases, namely:-(a) where the registered user being an individual enters into a partnership with any other person for carrying on the business concerned; but in any such case the firm may use the trade mark, 40 if otherwise in force, only for so long as the registere<i user il i member of the firm; (b) where the registered user being a firm subsequenuy undergoes a change in its constitution; but in any such case the reconstituted firm may use the trade mark, if otherwise in force, only for so long as any partner of the original firm at the time 5 of its registration as registered user, continues to be a partner of the reconstituted firm explanation 2-for the purposes of explanation i, "firm" has the same meaning as in the indian partnership act, 1932 54 (1) whete under the provisions of this act use of a registered usc of one 10 trade mark is required to be prov~ for any purpose, the tribunal ~~ :~b~~ may, if and so far as it shall think right, accept use of a registered ~ idenassociated trade mark, or of the trade mark with additions or altera- !rlt~::~i tions not substantially affecting its identity, as an equivalent for the valent to use use required to be proved of another is (2) the use of the whole of a registered trade mark shall for the purposes of this act be deemed to be also a use of any trade mark being a part thereof and registered in accordance with sub-section (1) of section 15 in the name of the same proprietor 55 (1) the application in india of a trade mark to goods to be usc of trade 20 exported from india and any other act done in india in relation to mark for goods to be so exported which, if done in relation to goods to be sold ~~rtand ot otherwise traded in within india would constitute use of a trade ulfi e whfen d  ormotrae mark therein, shall be deemed to constitute use of the trade mark in connection relation to those goods for any purpose for which such use is material changes   2s under this act or any other law (2) the use of a registered trade mark in relation to goods between which and the person using the mark any form of connection in the course of trade subsists shall not be deemed to be likely to cause deception or confusion on the ground only that the mark 30 has been or is used in relation to goods between which and the said person or a predecessor in title of that person a different form of connection in the course of trade subsisted or subsists  chapter vii rectification and correction of the register35 56 (1) on application in the prescribed manner by any person power to aggrieved to a high court or to the registrar, the tribunal may make =~~_ such order as it may think fit for cancelling or varying the registra- tration and tion of a trade mark on the ground of any contravention, or failure coh ~yt to observe a condition entered on the register in relation thereto t e  e  (2) any person aggrieved by the absence or omission from the register of any entry, or by any entry made in the register without sufficient cause, or by any entry wrongly remaining on the register, or by any error or defect in any entry in the register, may apply in the prescribed manner to a high court or to the registrar, s and the tribunal may make such order for making, expunging or varying the ~ntry as it may think fit (3) the tribunal may in any proceeding under this section decide any question that may be necessary or expedient to decide in connection with the rectification of the register 10 (4) the tribunal, of its own motion, may, after giving notice 'in the prescribed manner to the parties concerned and after giving them an opportunity of being heard, make any order referred to in subsection (1) or sub-section (2) (5) any order of the high court rectifying the register shailis direct that notice of the rectification shall be served upon the registrar in the prescribed manner who shall upon receipt of such notice rectify the register accordingly (6) the power to rectify the register conferred by this section shall include the power to remove a trade mark registered in part a 20 of the register to part b of the register correction of reaiater 57 (1) the registrar may, on application made in the prescribed manner by the registered proprietor-(a) correct any error in the name, address or description of the registered proprietor of a trade mark, or any other entry 25 relating to the trade mark; (b) enter any change in the name, address or description of the person who is registered as proprietor of a trade mark; (c) cancel the entry of a trade mark on the register; (d) strike out any goods or classes of goods from those in 30 respect of which a trade mark is registered; (e) enter a disclaimer or memorandum relating to a trade mark which does not in any way extend the rights given by the existing registration of the trade mark; and may make any consequential amendment or alteration in the 35  certificate of registration, and for that purpose, may require the certificate of registration to be produced to him (2) the registrar may, on application made in the prescribed manner by a registered user of a trade mark, and after notice to the registered proprietor, correct any error, or enter any change, in the name, address or description of the registered user 58 (1) the registered proprietor of a trade mark may apply in alteratioo the prescribed manner to the registrar fo~ leave to add to ?r alter ':jd1::::: s the trade mark in any manner not substantially affectmg the ldentity thereof, and the registrar may refuse leave or may grant it on such terms and subject to such limitations as he may think fit (2) the registrar may cause an application under this section to be advertised in the prescribed manner in any case where it appears 10 to him that it is expedient so to do, and where he does so, if within the prescribed time from the date of the advertisement any person gives notice to the registrar in t'he prescribed manner of opposition to the application, the registrar shall, after hearing the parties if so required, decide the matter is (3) where leave is granted under this section, the trade mark as altered shall be advertised in the prescribed manner, unless the application has already been advertised under sub-section (2) 59 (1) the registrar shall not, in exercise of any power conferred adaptation on him by rules made with reference to clause (a) of sub-section (2) ofc::nttriest in regis er 0 20 of section 133, make any amendment of the register which would amended have the effect of adding any goods or classes of goods to those in ~:ds~~~j3: respect of which a trade mark is registered (whether in one or more cation of classes) immediately before the amendment is to be made or of goods ante-dating the registration of a trade mark in respect of any goods: 2s provided that this sub-section shall not apply when the registrar is satisfied that compliance therewith would involve undue complexity and that the addition or ante-dating as the case may be, would not affect any substantial quantity of goods and would not substantially prejudice the rights of any person 30 (2) a proposal so to amend the register shall be notified to the registered proprietor of the trade mark affected and advertised in the prescribed manner t and may be opposed before the registrar by any person aggrieved on the ground that the proposed amendment contravenes the provisions of sub-section (1)  chapter vm 3scertification trade marks 80 the following provisions of this act shall not apply to certi- certain proft d visions of cation tra e marks, that is to say,-this act not (a) section 9' applicl!ble , to certi1ica-(b) sections 18, 20 and 21, except as expressly applied by this tion~~de cha ta' mar  p , - (c) sections 28, 29, 30, 39, 40, 41, 45, 46, 47, 48, 49, 51, 62, 53 and sub-section (2) of section 55; (d) chapter x except section 81; (e) any provision the operation of which is limited by the terms thereof to registration in part b of the register 5 regiatration 61 (1) a certification trade mark shall be registrable only in d~~~a-part a of the register marks (2) a mark shall not be registrable as a certification trade mark in the name of a person who carries on a trade in goods of the kind certified 10 (3) in determining whether a certification trade mark is adapted to distinguish in accordance with the provisions of clause (c) of sub-section (1) of section 2, the tribunal may have regard to the extent to which-(a) the mark is inherently so adapted to distinguish in re- 15 lation to the goods in question; and (b) by reason of the use of the mark or of any other circumstances, the mark is in fact so adapted to distinguish in relation to the goods in question applic!,rions 62 (1) an application for the registration of a mark as a certi- 20 ~f~:~r~- fication trade mark shall be made to the registrar in writing in the fication prescribed manner by the person proposed to be registered as the trade marks proprietor thereof, and accompanied by a draft of the regulations to be deposited und(>r section 65 (2) subject to the provisions of section 61, the provisions of sub- 25 sections (1), (2), (3), (4) and (6) of section 18 and of sections 19 and 22 shall apply in relation to an application under this section as they apply in relation to an application under section 18, subject to the modification that references therein to acceptance of an application shall be construed as references to authorisation to proceed 30 with an application (3) in dealing under the ~aid provisions with an application under this section, the tribunal shall have regard to the like eonsiderations, so far as relevant, af! if the application were an application under section 18 and to any other considerations, not being 3s matters within the competence of the central government uncler section 63 relewnt to applications under this section, including the desirability of securing that a certification trade mark shall comprise some indication that it is a certification trade mark 63 (1) when authorisation to proceed with an application under considera-5 section 62 has been given, the registrar shall forward the application ti0tin of appyca ons or to the central government registration by central (2) the central government shall consider the application so governforwarded with regard to the following matters, namely:-ment 10 (a) whether the applicant is competent to certify the goods in respect of which the mark is to be registered; (b) whether the draft of the regulations to be deposited under section 65 is satisfactory; - (c) whether in all the circumstances the registration applied for would be to the public advantage; is and may either-(i) direct that the application shall not be accepted; or (ii) direct the registrar to accept the application and approve the said draft of the regulations either without modification and unconditionally or subject to any conditions or limitations, or to 20 any amendments or modification of the application or of the regulations, which it thinks requisite having regard to any of the said matters (3) except in the case of a direction for acceptance and approval without modification and unconditionally, the central government 25 shall not decide any matter under sub-section (2) without giving to the applicant an opportunity of being heard (4) notwithstanding anything contained in this section, the central government may, at the request of the applicant made with the concurrence of the registrar, consider the application with re-30 gard to any of the matters referred to in sub-section (2) before authorisation to proceed with the application is given, but the central government shall be at liberty to reconsider any matter on which it has given a decision under this sub-section if any amendment or modification is thereafter made in the application or in the 35 draft of the regulations m (1) when an application has been accepted, the registrar oppositlon shall, as soon as may be thereafter, cause the application as accepted ~o~e:t:'-_ to be advertised in the prescribed manner, and the provisions of tification section 21 shall apply in relation to the registration of the mark as trade marts 40 they apply in relation to an application under sectlon 18 """"',,  " '\ -  'r - (2) in deciding any matter relating to opposition proceec:linas under the provisions aforesaid the tribunal shall have regard only to the considerations referred to in sub-section (3) of section 62, and a decision under the said provisions in favour of the applicant shall be conditional on the determination in his favour by the central 5 government under sub-section (3) of this section of any opposition relating to any of the matters referred to in section 63 (3) when notice of opposition is given relating to any of the matters referred to in section 63, the central government shall, after hearing the parties if so required, and considering any evidence, de- 10 cide whether, and subject to what conditions or limitations, or amendments or modifications, if any, of the application or of the regulations to be deposited under section 65, registration is, having regard to those matters, to be permitted deposit of regulations governing the use of a certification trade mark 65 (1) there shall be deposited at the trade marks registry in 15 respect of every mark registered as a certification trade mark regulations approved by the central government for governing the use thereof, which shall include provisions as to the cases in which the proprietor is to certify goods and to authorise the use of the certification trade mark, and may contain any other provisions which 20 the central government may, by general or special" order, require or permit to be inserted therein (including provisions conferring a right of appeal to the registrar against nny refusal of the proprietor to certify goods or to authorise the use of the certification trade mark in accordance with the regulations); and regulations so deposited 25 ·shall be open to inspection in like manner as the register (2) the regulations so deposited may on the application of the registered proprietor be altered by the registrar with the consent of the central government (3) the central government may cause such application to be 30 advertised in any case where it appears to it expedient so to do, and where it does so, if within the time specified in the advertisement any person gives notice of opposition to the application, the central government shall not decide the matter without giving the parties an opportunity of being heard 35 86 (1) subject to the provisions of sections 33, m and 68, the registration of a person as proprietor of a certification trade mark in respect of any goods shall, if valid, give to that person the exclusive right to the use of the mark in relation to those goods riahta conferred by regiltranon 01 cerd1icadon trade marks (2) the exclusive right to the use of a certification trade mark given under sub-section (1) shall be subject to any conditions and limitations to which the registration is subject 17 the right conferred by section 66 is infringed by any person infringe-5 who, not being the proprietor of the certification trade mark or a ~c:ti:ncer­person authorised by him in that behalf under the regulations de- trade marks posited under section 65, using it in accordance therewith, uses a mark which is identical with, or deceptively similar to, the certification trade mark in the course of trade, in relation to any goods to in respect of which it is registered, and in such manner as to render the use of the mark likely to be taken as being use as a certification trade mark 68 (1) notwithstanding anything contained in this act, the follow- :~:j~~ ing acts do not constitute an infringement of the right to the use of a infringeme~t 15 registered certification trade mark'-~f certifica--  tlon trade marks (a) where a certification trade mark is registered subject to any conditions or limitations entered on the register, the use of any such mark in any mode, in relation to goods to be sold or otherwise traded in any place, or in relation to goods to be exported to any market or in any other circumstances, to which having regard to any such limitations, the registration does not extend; (b) the use of a certification trade mark in relation to goods certified by the proprietor of the mark if, as to those goods or a 25 bulk of which they form part, the proprietor or another in accordance with his authorisation under the relevant regulations has applied the mark and has not subsequently removed or obliterated it, or the proprietor has at any time expressly or impliedly consented to the use of the mark; 30 (c) the use of a certification trade mark in relation to goods adapted to form part of, or to be accessory to, other goods in relation to which the mark has been used without infringement of the right given as aforesaid or might for the time being be so used, if the use of the mark is reasonably necessary in order 35 to indicate that the goods are so adapted and neither the purpose nor the effect,of the use of the mark is to indicate otherwise than in accordance with the fact that the goods arecertifled by the proprietor (2) clause (a) of sub-section (i) shall not apply to the case of 40 use consisting of the application of a certification trade mark to goods, notwithstanding that they are such goods as are mentioned in that clause if such application is contrary to the regulations referred to in that clause (3) where a certification trade mark is one of two or more trade marks, registered under this act, which are identical or nearly resemble each other, the use of any of those trade marks in exercise 5 of the right to the use of that trade mark given by registration, shall not be deemed to be an infringement of the right so given to the use of any other of those trade marks, cance~tionf 69 (1) the central government may, on the application in the or varytdg 0 'bed f  ed th d rqiltradon prescn manner 0 any person aggnev or on e recommen - 10 ation of the registrar, and after giving the proprietor an opportunity of opposing the application or recommendation, make such order as it thinks fit for expunging or varying any entry in the register relating to a certification trade mark, or for varying the deposited regulations, on any of the following grounds, namely:-is (a) that the proprietor is no longer competent, in the case of any of the goods in respect of which the mark is registered, to certify those goods; i (b) that the proprietor has failed to observe any provision of the deposited regulations to be observed on his part; 20 (c) that it is no longer to the pub1ic advantage that the mark should remain registered; (d) that it is requisite for the public advantage t118t, if the mark remains registered, the regulations should be varied; and neither a high court nor the registrar shall have any jurisdiction 25 to make an order under section 56 on any of those grounds (2) the registrar shall rectify the register and the deposited regulations in such manner as may be requisite for giving effect to an order made under sub-section (1) decisions of 70 save as otherwise expressly provided in this chapter, every 30 ~~:!ment decision of the central government under this chapter shall be to be final final  i  chapter ix special provisions for textile goodstextile goods, '11 the central government may prescribe classes of goods (in 35 this chapter referred to as textile goods) to the trade marks used in relation to which the provisions of this chapter shall apply; and subject to the said provisions, the other provisions of this act aball apply to such trade marks as they apply to trade marks used in relation to other classes of goods 72 (1) in respect of textile goods being piece goods-5 ileatric:tion onrepua-(a) no mark consisting of a line heading alone shall be re- tion of textile joodt gistrable as a trade mark; (b) a line heading shall not be deemed to be adapted to distinguish; (c) the registration of a trade mark shall not give any ex-10 elusive right to the use of a line heading (2) in respect of any textile goods, the registration of letters or numerals, or any combination thereof, shall be subject to such c0nditions and restrictions as may be prescribed 73 (1) trade marks in respect of textile goods of which registr- :ie~~ex-15 ation has been refused shall, on application being made in the pres- ijat cribed manner and on payment of the prescribed fee, be entered by the registrar in a list called the refused textile marks list, ad shall remain therein for a period of seven years from the date of application to register 20 (2) the entry in the refused list as aforesaid may be continued in the list each time for a further period of seven years on application made in the prescribed manner and on payment of the prescribed fee 74 (1) piece goods, such as are ordinarily sold by length or by ~5 the piece, which have been manufactured, bleached, dyed, printed :=p~~ or finished in premises which are a factory, as defined in the factor- cotton yam ies act, 1948, shall not be removed for sale from the last of such and thrad premises in which they underwent any of the said processes without having conspicuously stamped in international form of indian 30 numerals on each piece the length thereof in standard yards, or in standard yards and a fraction of such a yard, or in standard metres or in standard metres and a fraction of such a metre, according to the real length of the piece, and, except when the goods are sold from the factory for export from india, without being 35 conspicuously marked on each piece with the name of the manufacturer or of the occupier of the premises in which the piece was finally processed or of the wholesale purchaser in india of the piece (2) cotton yarn such as is ordinarily sold in bundles, and cotton thread, namely, sewing, darning, crochet or handicraft thread, which 40 have been manufactured, bleached, dyed, or finished in any premises not exempted by the rules made under section 75 shall not be temoveci for sale from those premises unless, in accordance with the said rules in the case of yarn-(a) the bundles are conspicuously marked with an indica; tion of the weight of yarn in the english or the metric system 5 in each bundle; and (b) the count of the yarn contained in the bundle and in the case of thread each unit is conspicuously marked with the length or weight of thread in the unit and in such other manner as may be required by the said rules; and 10 (c) except where the goods are sold from the premises for export from india, unless each bundle or unit is conspicuously marked with the name of the manufacturer or of the wholesale purchaser in india of the goods: provided that the rules made under section 75 shall exempt all 15 premises where the work is done by members of one family with or without the assistance of not more than ten other employees, and all premises controlled by a co-operative society where not more than twenty workers are employed in the premises determina-75 (1) for the purposes of this chapter, the central govern- ao dod of eha- ment may make rulesncter of tex-' tile goodj by , aampq (a) to provide, with respect to any goods which purport or are alle~ed to be of uniform number, quantity, measure, gauge or weight, for the number of samples to be selected and tested and for the selection of the sampl~s; zs (b) to provide for the manner in which for the purposes of section 74 cotton yarn and cotton thread shall be marked with the particulars required by that section, and for the exemption of certain premises used for the manufacture, bleaching, dyeine or finishing of cotton yarn or cotton thread from the provisions 30 of that section; and (c) declaring what classes of goods are included in the expression "piece goods such as are ordinarily sold by the length or by the piece" for the purpose of section 74 or section 18 of the sea customs act, 1878 (2) with respect to any goods for the selection and testing of aamples of which provision is not made in any rules for the time being in force under sub-section (i), the court or ofticer of customs, as the case may be, having occasion to ascertain the number, quantity, measure, gauge or weight of the goods, shall, by order in writing, determine the number of samples to be selected and tested and the manner in which the samples are to be selected 5 (3) the average of" the results of the testing in pursuance of rules under sub-section (1) or of an order under sub-section (2) shall be prima facie evidence of the number, quantity, measure, gauge or weight, as the case may be, of the goods (4) if a person having any claim to, or in relation to, any goods 10 of which samples have been selected and tested in pursuance of rules under sub-section (1), or of an order under sub-section (2), desires that any further samples of the goods be selected and tested, such further samples shall, on his written application and on the payment in advance by him to the court or officer of customs, 15 as the case may be, of such sums for defraying the cost of the further selection and testing as the court or officer may from time to time require, be selected and tested to such extent as may be permitted by rules to be made by the central government in this behalf or as, in the case of goods with respect to which provision is not made in 20 such rules, the court or officer of customs may determine in the circumstances to be reasonable, the samples being selected in the manner prescribed under sub-section (1), or in sub-section (2), as the case may be (5) the average of the results of the te6ting r~ferred to in sub-25 section (3) and of the further testing under sub-section (4) shall be conclusive proof of the number, quantity, measure, gauge or weight, as the case may be, of the goods  chapter x offences, penalties and procedure30 76 (1) a person shall be deemed to apply a trade mark or mark ~i;:: of or trade description to goods whotrade marks add trade (a) applies it to the goods themselves; or descriptions (b) applies it to any package in or with which the goods are sold, or exposed for sale, or had in possession for sale or for any 35 purpose of trade or manufacture; or (c) places, encloses, or annexes any goods which are sold, or exposed for sale, or had in possession for sale or for any purpose of trade or manufacture, in or with any package or other thing to which a trade mark or mark or trade description 40 has been applied; or (d) uses a trade mark or mark or trade description in any manner reasonably likely to lead to the belief that the goods in connection with which it is used are designated or described by that trade mark or mark or trade description; or (e) in relation to the said goods uses a trade mark or trade s description in any sign, advertisement, invoice, catalogue, business letter, business paper, price list, or other commercial document, and goods are delivered to a person in pursuance of a request or order made by reference to the trade mark or trade description as so used 10 (2) a trade mark or mark or trade description shall be deemed to be applied to goods whether it is woven in, impressed on, or otherwise worked into, or annexed or affixed to, the goods or to any package or other thing ~ 77 (1) a person shall be deemed to falsify a trade mark who, is !d falie1y either,-=~ (4) without the assent of the proprietor of the trade mark makes that trade mark or a deceptively similar mark; or (b) falsifies any genuine trade mark, whether by alteration, addition, effacement or otherwise 20 (2) a person shall be deemed to falsely apply to goods a trade mark who, without the assent of the proprietor of the trade mark,-(a) applies such trade mark or a deceptively similar mark, to goods or any package containing goods; (b) uses any package bearing a mark which is identical 25 with or deceptively similar to the trade mark of such proprietor, for the purpose of packing, filling, or wrapping therein any goods other than the genuine goods of the proprietor of the trade mark (3) any trade mark or mark falsified as mentioned in subsection (1) or falsely applied as mentioned in sub-section (2), is in 30 this act referred to as a false trade mark (4) in any prosecution for falsifying a trade mark or falsely applying a trade mark to goods, the burden of proving the assent of the proprietor shall lie on the accused 78 any person who,-35 (4) falsifies any trade mark; or (b) falsely applies to goods any trademark or a deceptively similar mark; or (c) makes, disposes of, or has in his possession, any die, block, machine, plate or other instrument for the purpose of falsifying, or of being used for falsifying, a trade mark; or (d) applies any false trade description to goods; or s (e) applies to any goods to which an indication of the country or place in which they were made or produced or the nanle and address of the manufacturer or person for whom the goods are manufactured is required to be applied under section 118 a false 'indication of such country, place, name or address; or 10 <f) tampers with, alters or effaces an indication of origin which has been applied to any goods to which it is required to be applied under section 118; or (g) causes any of the things above mentioned in this section to be done; is shall, unless he proves th~t he acted without intent to defraud, be punishable with imprisonment for a term which may extend to two years, or with fine, or with both: provided that where the offence under this section is in relation to goods or any package containing goods which are "drugs" as 20 defined in clause (b) of section 3 of the drugs act, 1940, or "food" as defined in clause (v) of section 2 of the prevention of food adulteration act 1954, the offender shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both ~s 79 any person who sells, or exposes for sale, or has in his pe~alty for  sell~good possession for sale or for any purpose of trade or manufacture, any to which a goods or things to which any false trade mark or false trade descrip- (al8k trate tion is applied or which, being required under section 118 to have ~r!~e d~s­applied to them an indication of the country or place in which they cripl~iodn i app ie - 30 were made or produced or the name and address of the manufacturer or the person for whom the goods are manufactured, are without the indication so required, shall, unless he proves,-35 (a) that, having taken all reasonable precautions against committing an offence against this section, he had at the time of the commission of the alleged offence no reason to suspect the genuineness of the trade mark or trade description or that any offence had been committed in respect of the goods; and (b) that, on demand by or on behalf of the prosecutor, he gave all the information in his power with respect to the person from whom he obtained such goods or things; or (c) that otherwise he had acted innocently; be punishable with imprisonment for a term which may extend to two years, or with fine, or with both: provided that when the offence against this section is in relation to goods or any package containing goods which are "drugs" as 5 defined in clause (b) of section 3 of the drugs act, 1940, or "food" ~3 of 1940 as defined in clause (v) of section 2 of the prevention of food adulteration act, 1954, the offender shall be punishable with imprison-37 of 19s4 ment for a term which may extend to tkree years, or with fine, or with both 10 peaalt~ for 80 if any person removes 'or attempts to remove or causes or rc:mov~ attempts to cause to be removed for sale from any premises referred ::c~ contra~ to in section 74, or sells or exposes for sale or has in his possession ~to section for sale or for any purpose of trade or manufacture piece goods or cotton yarn or cotton thread which is not marked as required by that is section, every such piece and every such bundle of yarn and all such thread and everything used for the packing threof shall be forefeited to government and such person shall be punishable with fine which may extend to one thousand rupees 81 (1) no person shall make any representation-20 peoalty for falsdy rcprescntida i trade mark u registered (a) with respect to a mark not being a registered trade ~k, to the effect that it is a registered trade mark; or (b) with respect to a part of a registered trade mark not being a part separately registered as a trade mark, to the effect that it is separately registered as a trade mark; or 25 -; (c) to the effect that a registered trade mark is registered in respect of any goods in respect of which it is not in fact registered; or (d) to the effect that the registration of a trade mark gives an exclusive right to the use thereof in any circumstances in 30 which, having regard to limitations entered on the register, the registration does not in fact give that right (2) if any person contravenes any of the provisions of subsection (1), he shall be punishable with imprisonment for a term which may extend to six months"or with fine which may extend to 3s five hundred rupees, or with both (3) for the purposes of this section, the use in india in relation to a trade mark of the word "registered", or of any other expression referring, whether expressly or impliedly to registration, shall be deemed to import a reference to registration in the register, except-(a) where that word or other expression is used in direct association with other words delineated in characters at least as 5 large as those in which that word or other expression is delineated and indicating that the reference is to registration as a trade mark under the law of a country outside india being a country under the law of which the registration referred to is in fact in force; or 10 (b) where that other expression is of itself such as to indicate that the reference is to such registration as is mentioned in clause (a); or (c) where that word is used in relation to a mark registered as a trade mark under the law of a country outside india and in 15 relation solely to goods to be exported to that country 82 if any person uses, in connection with his business, words ~ena::: if which would reasonably lead to the belief that his oftlce is, or is ::'ib:i officially connected with, the trade marks office, he shell be punish- ~e~::s able with imprisonment for a term which may extend to six months, mark 20 or with fine, or with both office 83 if any person makes, or causes to be made a false entry in r~ty ~or the register, or a writing falsely purporting to be a copy of an entry of en:~cm in the register, or produces or tenders, or causes to be produced or in ~e d d ··d h 't' len  th  regtster ten ere , m evl ence any suc wrl mg, owmg e entry or wnting to be false, he shall be punishable with imprisonment for a term 25 which may extend to two years, or with fine, or with both 84 the provisions of sections 77, 78 and 79 shall, in relation to a ~o offen~e  m certam registered trade mark or proprietor of such mark, be subject to the cases rights created or recognised by this act, and no act or omission shall be deemed to be an offence under those sections if the same were 30 lawful or permitted under this aet 85 (1) where a person is convictpd of an offence under section forfeiture of 78 or section 79, or is acquitted of an offence under section 78 on soods proof that he acted without intent to defraud, or under section 79 on proof of the matters specified in clauses (a), (b) and (c) of tbbt 35 section, the court convicting or acquitting him may direct the forfeiture to government of all goods and things by means of, or in relation to which, the offence has been committed, or but for such proof as aforesaid would have been committed (2) when a forfeiture is directed on a conviction and an appeal 40 lies against the conviction, an appeal shall lie against the lorfeiture also (3) when a forfeiture is directed on an acquittal and the joocit or things to which the direction pelates are of value exceeding fifty rupees, an appeal against the forfeiture may be preferred, within thirty days from the date of the direction, to the court to which in appealable cases appeals lie from sentences of the court which directed the forfeiture i 5 (4) when a forfeiture is directed on a conviction the court, before whom the person is convicted, may order any forfeited articles to be destroyed or otherwise disposed of as the court thinks fit 86 where a person accused of an offence under section 78 proves-exemption ofcenain penons ejnp'loyed in ordinary coune of business (a) that in the ordinary course of his business he is employ- 10 ed on behalf of other persons to apply trade marks or trade descriptions, or, as the case may be, to make dies, blocks, machines, plates, or other instruments for making, or being used in making, trade marks; and (b) that in the case which is the subject of the charge he is was so employed, and was not interested in the goods or other thing by way of profit or commission dependent on the sale of such goods; and : (c) that he took all reasonable precautions against commi~ting the offence charged; and 20 commission of the genuineness of the (d) that he had, at the time of the alleged offence, no reason to suspect the trade mark or trade description; and (e) that, on demand made by or on behalf of the prosecutor, he gave all the information in his power to the persons as on whose behalf the trade mark, or trade description was applied~ he shall be acquitted 17 (1) where the offence charged under section 78 or section 79 is in relation to a registered trade mark and the accused pleads that 30 the registration of the trade mark is invalid, the following proceduf'e shall be followed:-" procedure where invalidity of reaistration i pleaded by the accuaed (a) if the magistrate is satisfied that such defence is prima facie tenable, he shall not proceed with the charge but shall adjourn the proceeding for three months from the date on which 35 the plea of the accused is recorded to enable the accused to file an application before the high court under this act, for the rectification of the register on the ground that the reeistration is invalid (b) if the accused proves to the magistrate that he has made 5 such application as is mentioned in sub-section (2) within the time so limited or within such further time as the magistrate may for sufficient cause allow, the further proceedings in the prosecution shall stand stayed till the disposal of such application for rectification and of the appeal, if any, therefrom 10 (c) if within a period of three months or within such extended time as may be allowed by the magistrate the accused fails to apply to the high court for rectification of the register, the magistrate shall proceed with the case as if the registration were valid 15 (2) where before the institution of a complaint of an offence referred to in sub-section (1), any application for the rectification of the register concerning the trade mark in question on the ground of invalidity of the registration th~reof has already been properly made to and is pending before the tribunal, the magistrate shall 20 stay the further proceedings in the prosecution pending the disposal of the application aforesaid and shall determine the charge against the accused in conformity with the result of the· application for rectification 88 no court shall take cognizance of an offence under section 81, cognizapcc 25 ection 82 or section 83 except on complaint in writing made by the ~~:~ registrar or any officer authorised by him in writin, 89 no court inferior to that of a sessions judge, presidency courts magistrate or magistrate of the first class shall try an offence under competent to try this act otiencel 30 to in the case of goods brought into india by sea, evidence of e~4ence of the port of shipment shall, in a pro~ecution for an offence under o~~ i:!-this act or section 18 of the sea customs act, 1878, be prima facie gorted by evidence of the place or country in which the goods were made or sea produced 35 91 (1) on any such prosecution as is mentioned in section 90, costs of d  b th defence or the court mayor er costs to be paid to the defendant y e prose- prosecution cutor or to the prosecutor by the defendant, having regard to the information given by and the conduct of the defendant and prosecutor respectively limitation of prosecutioa (2) such costs shall, on application to the court, be recoverable as if they were a fine -92 no prosecution for an offence under this act or under section 18 of the sea customs act, 1878, shall be commenced after the - expiration of three years next after the commission of the offence 5 charged, or one year after the discovery thereof by the prosecutor, whichever expiration first happens information as to amlmillion of offence 93 an officer of the government whose duty it is to take part in the enforcement of this chapter, shall not be compelled in any court to say whence he got any information as to the commission of 10 any offence against this act punishment 94 if any person, being within in~ia, abets the commission, withf!~:~~ft out india, of any act which, if committed in india, would, under this lets done act, be an offence, he may be tried for such abetment in any place out of india in india in which he may be found, and be punished therefor with 15 the punishment to which he would be liable if he had himself committed in that place the act whi~h he abetted instructions 95 the central government may, by notification in the official by central gazette, issue instructions for the limits of variation, as regards government b t·t  ht h· h t b as to pernum er, quan 1 y, measure, gauge or weig ,w ic are 0 e recogmi~sil?le nised by crimin8l courts as permissible in the case of any goods 20 vllnatlons to be observed by criminal courts chapter xi  miscellaneousimplied 96 on the sale or in the contract for the sale of any goods to " :~~~ty od which a trade mark or mark or trade description has been applied, marked the seller shall be deemed to warrant that the mark is a genuine 25 ioods mark and not falsely applied, or that the trade description is not a false trade description within the meaning of this act, unless the contrary is expressed in some writing signed by or on behalf of the seller and delivered at the time of the sale or contract to and accepted by the buyer 30 97 in all proceedings under this act before the registrar-powen of registrar (a) the registrar shall have all the powers of a civil court for the purposes of receiving evidence, adminigtering oaths, enforcing the attendance of witnesses, compelling the discovery and production of documents and issuing commissions for the 35 examination of witnesses; (b) the registrar may, subject to any rules made in this behalf under section 133, make such orders as to costs as he considers reasonable, and any such order shall be executable as a decree of a civil court:· 5 provided that the registrar shall have no pow8r to award costs to or against any party on an appeal to him against a refusal of the proprietor of a certification trade mark to certify goods or to authorise the use of the mark; (c) the registrar may, on an application made in the pry-[0 cribed manner, review his own decision is subject to the provisions of section 101, the registrar shall e~erci~e of t  d' t' th t d' h' b discretlonno exerc1se any 1scre lonary or 0 er power ves e m 1m y ary power this act or the rules made thereunder adversely to a person apply- b)reliatrat ing for the exercise of that power without (if so required by that is person within the prescribed time) giving to that person an opportunity of bein~ heard 99 in any proceeding under this act before the registrar, evi- evidence dance shall be given by affidavit: before the ileliltrar provided that the registrar may, if he thinks fit, take oral evi-20 dence in lieu of, or in addition to, such evidence by aftldavit 100 if a person who is a party to a proceeding under this act death of (not being a proceeding in a court) dies pending the proceeding, partyedtoa proce jnl the registrar may, on request, and on proof to his satisfaction of the transmission of the interest of the deceased person, substitute 25 in the proceeding his successor in interest in his place, or, if the registrar is of opinion that the interest of the deceased person is sufficiently represented by the surviving parties, permit the proceeding to continue without the substitution of his successor in interest 30 101 (1) if the registrar is satisfied, on application made to him ext~nsjod  th 'b d d  d b h 'b f of time in e prescfl e manner an accompame y t e preser1 ed ee, that there is sufficient caus~ for extending the time for doing any act (not being a time expressly provided in the act), whether the time so specified has expired or not, he may, subject to such condi-35 tions as he may think fit to impose, extend the time and notify the parties accordingly (2) nothing in sub-section (1) shall be deemed to require the registrar to hear the parties before disposing of an application for extension of time, and no appeal shall lie from any order of the registrar under this section atandonment 102 where, in the opinion of the' registrar, an applicant' is in default in the prosecution of an application filed under this act or any act relating to trade marks in force prior to the commencement s of this act, the registrar may, by notice require the applicant to remedy the default within a time specified and after giving him, if so desired, an opportunity of being heard, treat the application as abandoned, unless the default is remedied within the time specified in the notice 10 preliminary ,dvice by the regiltrar aa to diltinctivebell 103 (1) the registrar may, on application made to him in the prescribed manner by any person who proposes to apply for the registration of 'a trade mark in part a or part b of the register, give advice as to whether the trade mark appears to him prima facie to be inherently adapted to distinguish, or capable of distinguish- is ing, as the case may be (2) if on an application for the registration of a trade mark as to which the registrar has given advice as aforesaid in the affirmative, made within three months after the advice was given, the registrar, after further investigation or consideration, gives notice 20 to the applicant of objection on the ground that the trade mark is not adapted to distinguish, or is not capable of distinguishing, as the case may be, the applicant shall be entitled, on giving notice of withdrawal of the application within the prescribed period, to have repaid to him any fee paid on the filing of the application 25 procedure 104 in all proceedings under this act before the central gov-" ~~~~j gaw ernment, evidence shall be given by affidavit: ycidment provided that the central government may, if it thinks fit, take oral evidence in lieu of, or in addition to, such evidence by aftldavit, and shall for that purpose have all the powers of a civil court referred to in clause (a) of section 97 30 105 no auit-(4) for the infringement of a registered trade mark; or suit for infri~ent etc, to be instituted before oil· tricl court (b) relating to any right in a registered trade mark; or (c) for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff's trade mark, whether registered or unregistered; shall be instituted in any court inferior to a district court having 5 jurisdiction to try the suit 106 (1) the relief which a court may grant in any suit for reli~ in  -   ,   suits lor mfnngement or for passmg off referred to in section 105 includes infringement an injunction (subject to such terms, if any, as the court thinks fit) or f~r passmg 0 f[ - and at the option of the plaintiff, either damages or an account of 10 profits, together with or without any order for the delivery up of the infringing labels and marks for destruction or erasure (2) notwithstanding anything contained in sub-section (1), the court shall not grant relief by way of damages (other than nominal damages) or an account of profits in any case-15 (a) where in a suit for infringement of a trade mark, the infringement complained of is in relation to a certification trade mark; or (b) where in a suit for infringement or passing off the defendant satisfies the court-20 (i) that at the time he commenced to use the trade mark complained of in the suit he was unaware and had no reasonable ground for believing that the trade mark of the plaintiff was on the register or in use; and (ii) that when he became aware of the existence and 25 nature of the plaintiff's trade mark, he forthwith ceased to use the trade mark in relation to goods in respect of which it was registered or was used by the plaintiff 107 (1) where in a suit for infringement of a registered trade ~pplicttion  - lor rectlficamark the vahdity of the registration of the plaintiff's trade mark tion of re;;is-30 is questioned by the defendant or where in any such suit the defen- terdto be ma e to ciant raises a defence under clause (d) of sub-section (1) of section !"ligh c<?urr 30 and the plaintiff questions the validity of the registration of the ~~a~~~[riii defendant's trade mark, the issue as to the validity of the registration of the trade mark concerned shall be detennined only on iul application for the rectification of the register, and notwithstanding anything contained in section 46, sub-section (4) of section 47 or section 56;0 such application shall be made to the high court and not to the registrar (2) subject to the provisions of sub-section (1), where an appli-s cation for rectification of the register is made to the registrar under section 46 or sub-section (4) of section 47 or section 56, the registrar may, if he thinks fit, refer the application at any stage of the proceeding to the high court prj(edure 108 (1) an application for rectification of the register made to a 10 t~~~ 1o~i:'!t- high court under section 46, sub-section (4) of section 47 or section fication before a high 56 shall be in such form and shall contain such particulars as may be 'be  cour! prescn d (2) every such application shall be heard by a single judge of the high court: is provided that any such judge may, if he thinks fit, refer the application at any stage of the proceedings for decision to a bench of that high court (3) where any such application is heard by a single judge of the high court, an appeal shall lie from the order made by him on the 20 apdlic'ation to a bench of the high court (4) subject to the provisions of this act and the rules made thereunder, the provisions of the code of civil procedure, 1908, shall s of apply to applications to a high court under this section (5) a certified copy of every order or judgment of the high court 2s or by the supreme court, as the case may be, relating to a registered trade mark under this section shall be communicated to the registrar by that court and the registrar shall, give effect to the order of the court and shall when so directed, amend the entries in, or rectify the register in accordance with such order 30 appeal8 109 (1) save as otherwise expressly provided in this act, au appeal shall lie within the period prescribed by the central government, from any order or decision of the registrar under this act or the rules made thereunder, to the high court (2) every such appeal shall be preferred by petition in writing 3s and shall be in such form and shall contain such particulars as may be prescribed (3) every such appeal shall be heard by a single judge of the high court: provided that any such judge may, if he so thinks fit, refer the appeal at any stage of the proceedings to a bench of the high court (4) where an appeal is heard by a single judge, a further appeal shall lie to a bench of the high court 5 (5) the high court in disposing of an appeal under this section shall have the power to make any order which the registrar could make under this act (6) in an appeal by an applicant for registration against a decision of the registrar under section 17 or section 18 or section 21, it shall 10 not be open, save with tbe express permission of the court, to the registrar or any party opposing the appeal to advance grounds other than those recorded in the said decision or advanced by the party in the proceedings before the registrar, as the case may be, and where any such additional grounds are advanced, the applicant for registra-istion may, on giving notice in the prescribed manner, withdraw his application without being liable to pay the costs of the registrar or the parties opposing his application (7) sl\bject to the provisions of this act and of the rules made , of 190& thereunder, the provisions of the code of civil procedure, 1908, shall 20 apply to appeals before a high court under this act 110 the high court may make rules consistent with this act as power of to the conduct and procedure of all proceedings under this act high kcourls  to ma e before it  rules 111 (1) where in any suit for the infringement of a trade mark- stay of proceedings 2s (a) the defendant pleads that the registration of the plain- ~~e!~idily tiff's trade mark is invalid; or ofregistration of the (b) the defendant raises a defence under clause (d) of sub-~rade m~rk is quesllonsection (1) of section 30 and the plaintiff pleads the invalidity ed etc of the registration of the defendant's trade mark; 30 the court trying the suit (hereinafter referred to as the court), shall,-(i) if any proceedings for rectification of the register in relation to the plaintiff's or defendant's trade mark are pending before the registrar or the high court, stay the suit pending 3s the final disposal of such proceedings; (ii) if no such proceedings are pending and the court is satisfied that the plea regarding the invalidity of the registration of the plaintiff's or defendant's trade mark is prima facie tenable, raise an issue regarding the same and adjourn the case for a period of three months from the date of the framing of the issue in order to enable the party concerned to apply to the high court for rectification of the register (2) if the party concerned proves to the court that he has made any such application as is referred to in clause (b) (ii) of sub-sec- j tion (1) within the time specified therein or within such extended time as the court may for sufficient cause allow, the trial of the suit shall stand stayed until the final disposal of the rectification proceedings (3) if no such application as aforesaid has been made within the 10 time so specified or within such extended time as the court may allow, the issue as to the validity of the registration of the trade mark concerned shall be deemed to have been abandoned and the court shall proceed with the suit in regard to the other issues in the case (4) the final order made in any rectification proceedings referred 15 to in sub-section (1) or sub-section (2) shall be binding upon the parties and the court shall dispose of the suit conformably to such order (5) the stay of a suit for the infringement of a trade mark under this section shall not preclude the court making any interlocutory 20 order (including any order granting an injunction, directing accounts to be kept, appointing a receiver or attaching any property), durina the period of the stay of the suit apoearance 112 (1) the registrar shall have the right to appear and be of re,istrar in legal h eard-25 proceedings (a) in any legal proceedings before a high court in which the relief sought includes alteration or rectification of the register or in which any question relating to the practice of the trade marks registry is raised; (b) in any appeal to the high court from an order of the 30 registrar on an application for registration of a trade mark-(i) which is not opposed, and the application is either refused by the registrar or is accepted by him subject to any amendments, modifications, conditions or limitations, or 35 (ii) which has been opposed and the registrar considers that his appearance is necessary in the public interest; and the registrar shall appear in any case if so directed by the court (2) unless the high court otherwise directs, the registrar may, in lieu qf appearing, submit a statement in writing signed by him giving such particulars as he thinks proper of the proceedings before him relating to the matter in issue, or of the grounds of any decision s given by him affecting it, or of the practice of the trade marks registry in like cases, or of other matters relevant to the issues and within his knowledge as registrar, and such statement sball be evidence in the proceeding 113 in all proceedings under this act before a high court the coiti of 10 costs of the registrar shall be in the discretion of the high court, ~q:i~~:" mpr~· but the registrar shall not be ordered to pay the costs of any of the in,s befcn parties high couft 114 in every proceeding under chapter vii or under section 109, regiltered every registered user of a trade mark using by way of permitted uiie, ~!~l!~d: 15 who is not himself an applicant in respect of any proceeding under in cenai~ that chapter or section, shall be made a party to the proceeding proceedmp 115 the registrar may, in any case where no appeal has been revisional preferred under section 109, either on his own motion or on appuoa- ih':ers of ticm made in the prescribed manner and within the prescribed time, registrar 20 call for and examine the record of any proceeding under this act in which an order has been passed by any deputy registrar or assistant registrar or other officer for the purpose of satisfying himself as to the legality or propriety of such order or as to the regularity of such proceeding, and may pass such order in relation thereto as he thidks 25 fit: provided that he shall not pass any order affecting adversely any person without giving that person an opportunity of being heard in the matter \\ 116 (1) a copy of any entry in the register or of any document evidence of 30 referred to ilj sub-section (1) of section 126, purporting to be certi- ent~iel in fled b h re · ed regl8ter etc y t e glstrar and seal with the seal of the trade marks and thi~, - registry, shall be admitted in evidence in all courts and in all don~ by the proceedings without further proof or production of the original rejlltrar (2) a certificate purporting to be under the hand of the registrar 3s as to any entry, matter or thing that he is authorised by this ~ct or the rules to make or do shall be prima facie evidence of the entry having been made, and of the contents thereof, or of the matter or thing having been done or not done jleaill!u 117 the :reifstrar or any other officer of the trade marks registry ana other  officers not shall not, in any legal proceedings to which he is not a party, be comrodpellable compellable to produce the register or any other document in his ~p ~   reiltcr, ctc custody, the contents of which can be proved by the production of a certified copy issued under this act or to appear as a witness to 5 prove the matters therein recorded unless by order of the court made for special cause power to require oodlto ibowindi-·cation of orilin 118 (1) the central government may, by notification in the official gazette, require that goods of any cless specified in the notification which are made or produced beyond the limits of india 10 and imported into india, or which are made or produced within the limits of india, shall from such date as may be appointed by the notification not being less than three months from its issue, have applied to them an indication of the country or place in which they were made or produced, or of the name and address of the manu- is facturer er the person for whom the goods were manufactured (2) the notification may specify the manner in which such indication shall be applied, that is to say, whether to the goods themselves or in any other manner, and the times or occasions on which the presence of the ~dication shall be necessary, that is to say, 20 whether on importation only, or also at the time of sale, whether by wholesale or retail or both i i ' (3) no notification under this section shall be issued, unless application is made for its issue by persons or associations substantially representing the interests of dealers in or manufacturers, zs producers, or users of the goods concerned, or unless the central government ia otherwise convinced that it is necessary in the public interest to issue the notification, with or without such inquiry as the central government may consider necessary (4) the provisions of section 23 of the general clauses act, 1897, 3010 of 1897 ihall apply to the issue of a notification under this section as they apply to the making of a rule or bye-law the making of which is wbject to the condition of previous publication (5) a notification under this section, shall not apply to goods made or produced beyond the limits of india and imported into india, if 35 in respect of those goods, the chief customs officer is satisfied at the time of importation that they are intended for exportation whether after transhipment in or transit through india or otherwise 119 (1) where goods; which are prohibited to be imported into po~e~~~ reqwre lluor-india under clause (d) of section 18 of the sea customs act, 1878, and mation ire liabl~ to detention and confiscation on importation under that ~~8~:dt of act, are imported into india the chief customs officer if, upon re- ,ood& bear-s presentation made to him, is satisfied that the trade mark corn- ~~!s~a1r:rk • plained of is used as a fabe trade mark, he may require the importer of the goods, or his agent, to produce any documents in his possession relating to the goods and to furnish information as to the name and address of the person by whom the goods were consigned 10 to india and the name and address of the person to whom the gooda were sent in india i ·  1 (2) the importer or his agent shall, within fourteen days, comply with the requirement as aforesaid, and if he fails to do so he may be punished with fine which may extend to five hundred rupees is (3) any information obtained from the importer of the goods or 20 his agent under this section may be communicated by the chief customs officer to the registered proprietor or registered user of the trade mark which is alleged to have been used as a false trade mark i i no if in any legal proceeding for rectification of the r@gister certiftcate before a high court a decision is on contest given in favour of of yaliditj1 the registered proprietor of the trade mark on the issue as to the validity of the registration of the trade mark, the high court may grant a certificate to that effect, and if such a certificate is granted, 2s then in any subsequent legal proceeding in which the said validity comes into question the said proprietor on obtaining a final order or judgment in his favour shall, unless the said final order or judgment for sufficient reason directs otherwise, be entitled to his full costs, charges and expenses as between legal practitioner and client 30 121 (1) where a person, by means of circulars, advertisements or groundless otherwise, threatens a person with an action or proceeding for in-=;n:l fringement of a trade mark which is registered, or alleged by the ceedinga first-m~ntioned person to be registered, sr some other like proceeding, a person aggrieved may, whether the person making the threats 3s is or is not the registered proprietor or the registered user of the trade mark, bring a suit against the first-mentioned person and may obtain a declaration to the effect that the threats are unjustifiable and an injunction against the continuance of the threats, and may recover such damages (if any) as he has sustained, unless the first-40 mentioned person satisfies the court that the trade mark is registered and that the acts in respect of which the proceedings were threatened constitute, or, if done, would constitute, an infringement of the trade mark (i) the last preceding sub-section does not apply if the registered p1'opl'ietor of the trade mark, or a registered user acting in pursuance of su~on (1) of section 51, with due diligence commences and prosecutes an action against the person threatened for infringement of the trade mark s (3) nothing in this section shall render a legal practitioner or a registered trade marks agent liable to an action under this section in respect of an act done by him in his professional capacity on behalf of a client : (4) a suit under sub-section (1) shall not be instituted in any 10 court inferior to a district court ttt (1) an address for service stated in an application or notice of opposition shall, for the purposes of the application or notice of opposition, be deemed to be the address of the applicant or opponent, as the case may be, and all documents in relation to the application 15 or notice of opposition may be served by leaving them at or sending them by post to the address for service of the applicant or opponent, as the case may be ' (2) an address for service may be changed by notice in writing to the registrar ' i 20 (3) the registered proprietor of a trade mark shall from time to time notify the registrar in writing of any change in his address, and request him in the prescribed manner to enter the change in the register, and the registrar shall alter the register accordingly (4) the address of the registered proprietor of a trade mark, u zs appearing for the time being in the register shall for all purposes under this act be deemed to be the address of the registered proprietor " - ,~ "--r trade ijtiiie, 123 in any suit or other proceeding relating to a trade mark, the :ec~~ in- tribunal shall admit evidence of the usages of the trade concemed 30 t'? consider- and of any relevant trade mark or trade name or get up legitimately tlon used by other persons' ' alent • ix where by or under this act, ~y act, other than the making of an affidavit is required to be done before the registrar by any person, the act may, subject to the rules made in this behalf, be done, 35 instead of by that person himself, by a person duly authorised in the prescribed manner, who is-(a) a legal practitioner, or (b) a person regiltered in the prescribed manner as a trade idaj7ks agent, or (c) a person in the sole and regular employment' of the principal i s 125 there shall be kept under the direction and supervision of indexes the registrar,-  (a) an index of registered trade marks, (b) an index of trade marks in respect of which applications for registration are pending, 10 (c) an index of the names of the proprietors of registered trade marks, and (d) an index of the names of registered users 126 (1) save as otherwise provided in sub-section (5) of documenu open to pubsection 49,-lie inspection is (a) the register, and any document upon which any entry in the register is based; (b) every notice of opposition to the registration of a trade mark, application for rectification before the registrar, counterstatement thereto, and any affidavit or document filed by the 20 parties in any proceedings before the registrar; (c) all regulations deposited under section 65, and all applications under section 69 for varying such regulations; (d) the refused textile marks list; (e) the indexes mentioned in section 125; and (f) such other documents as the central government may, by notification in the official gazette, specify; shall, subject to such conditions as may be prescribed, be open to public inspection at the trade marks registry (2) any person may, on application to the registrar and on pay-30 ment of such fees as may be prescribed, obtain a certified copy of any entry in the register or any document referred to in subsection (1) 127 (1) there shall be paid in respect of applications and regis- fees tration and other matters under this act such fees as may be pres-3s crlbed by the central government (2) where a fee is payable in respect of the doing of an act by the registrar, the registrar shall not cio that act until the fee has been paid (3) where a fee is payable in respect of the filing of a document at the trade marks registry, the document shall be deemed not to 5 have been filed at the registry until the fee has been paid 128 nothing in chapter x shall-savings in respect of certain matters in chapter x (a) exempt any person from any suit or other proceeding which might, but for anything in that chapter, be brought against him, 10 (b) entitle any person to refuse to make a complete discovery, or to answer any question or interrogatory in any suit or other proceeding, but such discovery or answer shall not be admissible in evidence against such person in any such prosecution for an offence under chapter x or under section 18 of the j 5 sea customs act, 1878, or 8 of 1878• (c) be construed so as to render liable to any prosecution or punishment any servant of a master resident in india who in good faith acts in obedience to the instructions of such master, and, on demand made by or on behalf of the prosecutor, has 20 given full information as to his master and as to the instructions which he has received from his master declaration 129 notwithstanding anything contained in the indian registra-:~i~ of~~:j; tion act, 1908, no document declaring or purporting to declare the 16 of 1908 llui~k not ownership or title of a person to a trade mark other than a registered 25 reslstrable  under the trade mark shall be registered under that act indian reaistration 'act, 1908 ~b:=:~ 130 the provisions of this act shall be binding on the government 131 (1) with a view to the fulfilment of a treaty, convention or arrangement, with any country outside india which affords to citizens of india similar privileges as' granted to its own citizens, the central 30 government may, by notification in the official gazette, declare such country to be a convention country for the purposes of this act special provisions relating to applications for registration from citizens of contention 'duntries (2) where a person has made an application for the registration of a trade mark in a convention country and that person, or his legal representative or assignee, makes an application for the registration 35 of the trade mark within six months after the date on which the application was made in the convention country, the trade mark shall, if registered under this act, be registered as of the date on which the application was made in the convention country and that date shall be deemed for the purposes of this act to be the date of registration (3) where applications have'been made for the registration of a s trade mark in two or more convention countries, the period of six months referred to in the last preceding sub-section shall be reckoned from the date on which the earlier or earliest of those applications was made 132 where any country specified by the ,central government in provisio~ 10 this behalf by notification ia the official gazette does not accord to ~~~i~;~i­citizeiui of india the same rights in respect of the registration and protection of trade marks as it accords to its own nationals, no i national of such country shall be entitled, either solely or jointly with any other person-is (a) to apply for the registration of or be registered as the proprietor of a trade mark in part a or part b of the register, (b) to be registered as the assignee of the proprietor of a registered trade mark, or (c) to apply for registration or be registered as a registered 20 user of a trade mark under section 49 133 (1) the central government may, by notification in the power of official gazette and subject to the condition of  revious publication, cgentral t y overnmen make rules to carry out the purposes of this act to make" rules 2s (2) in particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-(a) the classification of goods for the purpose of the registration of trade marks, and the empowering of the registrar to amend the register so far as may be necessary for the purpose 30 of adapting the entries therein to any amended or substituted classification; (b) the making "of duplicates of trade marks and other documents connected therewith; 35 (c) the securing and regulating the publication, sale or distribution of copies of trade marks and other documents connected therewith; (d) the additional matters to be entered in the reglster; (e) the conditions and restrictions iubjed to which the register, the refused textile marks list and other documenta may be inspected; (f) the for~ of certificates of registration; (g) the further documents, information or evklence which 5 should accompany an application under sub-section (1) of section 49; (h) the prescribing of classes of goods as textile goods for the purposes of section 71; (i) the awarding of costs by the registrar under section 97; 10 (j) the conditions subject to which a person may be regiftereel as a trade marks agent, and the conditions subject to which an a«ent referred to in section 124 may act; (k) the fees to be paid under this act; (1) the establishment of branches of the trade marks 15 registry for facilitating the working of this act, the territorial jurisdiction of the head office and branch offices of the trade marks registry and the preparation of the copies of the register to be kept at the branch offices;' , (m) the transfer of applications and proceedings pending at 20 the commencement of this act in any office of the registry to the appropriate office of the registry; (n) the manner in which, in proceedings under this act before the central government or the registrar, applications shall be made, notices given and matters advertised; 25 (0) the times or periods required by this act to be prescribed; (p) the regulation generally of the business of the trade marks registry and of the branches established under clause (1) and the regulation of all things by this act placed under the direction or control of the central government or the registrar; 30 (q) the number of samples to be selected and tested and for the selection of the samples for the purposes of section 75; (r) the manner in which cotton yam and cotton thread shall be marked with the particulars required by section 74, and the exemption of certain premises from the provisions of that section; 35 (s) the classes of goods included in the expression "piece ioods, such as are ordinarily sold by the length or by the piece" for the purposes of section 74, and clause <f) of section 18 of the sea customs act, 1878; (t) any other matter which is required to be or may be prescribed 5 134 all rules made under this act shall be laid before each house rules to be of parliament as soon as may be after they are made and shall be placcpd be)-b· t t h d'fi t' p i' k  h i fore ar ,asu jec 0 suc mo 1 ca ions as ar lament may rna e m t e sess on ment in which they are so laid or the session immediately following 135 the enactments specified in the schedule shall be amended amend-10 in the manner specified therein menta 136 (1) the indian merchandise marks act, 1889, and the trade repeal and marks act 1940, are h~reby repealed, savinrs (2) without prejudice to the provisions contained in the general clauses act 1897, with respect to repeals any notification, rule, is order requirement, certificate, notice, decision, determination, direction, approval, authorisation consent, application, request or thing made, issued given or done under the trade marks act, 1940, shall, if in force at the commencement of this act continue in force and have effect as if made issued, given or done under the corresponding 20 provision of this act (3) the provisions of this act shall apply to any application for registration of a trade mark pending at the commencement of this act and to any proceedings consequent thereon and to any registration granted in pursuance thereof 25 (4) notwithstanding anything contained in this act, any legal proceeding pending in-any court at the commencement of this act may be continued in that court as if this act had not been passed  the schedule ambndments| (s                           | ••                     ||------------------------------|------------------------|| section 135)                 |                        ||                              |                        || -                            |                        || -----                        |                        || •                         |                        || -------------~------------ |                        || year                         | no                    || amendment                    |                        || 1860                         |                        || 3s                           |                        || the                          | indian penal           || (i)                          |                        || in                           | the heading to charter || xviii                       |                        || the words                    | "tllade                || or                           |                        || shan                         | be                     || omined ;                     |                        || (ii)                         |                        || in                           |                        || the heading above section    |                        || 478, the                     |                        || word                         |                        || "'radl,"                     |                        || ihan                         |                        || be                           |                        || omined ;                     |                        || (iii)                        |                        || section                     | 478                    || omined ;                     |                        |amendment short title year no (iv) m 1icdgdsa, the woidi , fajae trade awt or" ebi1l be omitted    (0) in section 48~, the words  trade s markaor" shill be omitted; (lii) for section 485, the following section shall be substituted, namely;-making or possession of any instrument for counterfeiting "485 whoever 10 makes or haa in his possession any die, plate or other instrument for i s a property mark the purpose of counterfeiting a property mark, or has inlhil possession a property mark for the purpose of denoting that any goods belong to a penon to 20 whom they do not belong, ,hall be : pulished with imprisonment of  either description for a term which : may extend to three yean, or with fine, or with :both", 2s (w) in section 486, for the'!words "whoever sells, or exposes, or bas in possession for sale or any purpose of trade or manufacture, any goods or things with a ooun- 30 terfeit trade mark or peoperty mark", the words "whoever sells, or exposes, or bas ill polseasion for sale, any goods or things with a counterfeit property 35 marl' shall be lubstituted" the specific relief act, 1877 in section 54, the explonation and illustration (w)&tlhall be omined 8 in lec:tioai8,-the sea customs act, 1878 (,) for claule (4), the following clauicii 40 shall be substituted namely;-"(4) goods having applied thereto a false trade mark within the meaning of aection 77 of the trade and merc:han- 4s dise marks act, 1958; (dd) goods having applied thereto a falle trade des:ription within the meanina of clause (j) of sub-aection so (i) of section 2 of the trade and merchandise marbyact, 1958, otherwise than in relation to any of the manera 5s 8p'ecified in lub-clauaea (ll) and (iii) of clauic (u) of that aub-aectiod"; short title amendment 5 (il) in clause (f), in sub-clause (is), for the words "standard yards", the words "standard yards or in standard metres" shall be substituted; (iii) for clause (h), the following clause shall be substituted, namely:-)0 15 20 "(h) goods which are required by a notification under section lib of the trade and merchandise marks act, 195b, to have applied to them an indication of the country or place in which they were made or produced or the name and address of the manufacturer or the penon for whom the goods were manufactured, unless such goods ihow such indication app!ied in the manner spcdfted in the notification" - (iti) in clause (i), in sub-clause (il), for the figures and words "under section 20 of the indian merchandise marks act, 1889" 4 of r889 the words and figures "under section 75 of the trade and merchandise marks act, 1958" shall be substituted 35 (v) in clause (j), in aub-clause (il), for the words and flaures "under section 20 of the indian merchandise marks act, 1889", 4 of 18b9 the words and filures "under section 75 of the trade and merchandise mud act, 195b" shall be substituted 45 the code of rriminal in schedule 11,-procedure, 189b (i) in the heading to chapter xviii, the words "tltadb or" shall be omitted (n) in the heading above section 482, the words "tram and" shall be omitted so (iit) in the second column of the entry relating to section 482, the words "trade or" shall be omitted 55 (iv) in the second column of the entry relating to section 483, the words "trade or" shall be omitted ; ----------- ------- ---------------------year no short title amendment ---1-----------------------(0) in the second column of the entry relating to section 48s, the word~ "or trade" shall be 5 omitted; <"i) in the second column of the entry relatin, to section 486, the word "or trade" shall be omitted  statement of objects and reasonswith the increase in trade and commerce since the trade marb act, 1940, was enacted, the need has been felt for revising that statute so as to provide for more effective protection of trade marks it has been represepted to government that many valuable trade marks in use are now denied the benefits of registration on the ground that these marks do not satisfy the test of distinctiveness prescribed under the existing act and that it is necessary to enlarge the field of registrability so as to entitle them to registration this will also avoid the difficulties now experienced by indian merchants in securing registration of these marks in foreign countries where the production of a certificate of home registration is a condition precedent to obtaining the foreign registration again, the working of the trade marks act, 1940, has emphasised the need for providing better facilities for registration of trade marks by merchants in the distant parts of the country and for combining the trade marks registry and the patent office under a common head so as to ensure better co-ordination of the administration of the different branches of the law relating to industrial property the working of that act has also indicated the necessity for removing the existing uncertainties as to the jurisdiction of the high court to hear appeals from the registrar's decisions and for introducing certain other changes in that act for the purpose of removing ambiguities and for improving the law the criminal laws relating to trade marks and trade descriptions, which are contained in chapter xviii of the indian penal code and the indian merchandise marks act, 1889, respectively, were enacted at a time when commercial advertising in this country had not been much developed with the increase both in appeal and power of modern advertisements, a fresh approach to matters relating to false trade marks and false trade description has become necessary it is proposed to strengthen the law reltating to these matters by enhancing the punishment for offences relating to trade and merchandise marks, particularly where the offences are in relation to drugs and articles of food, on grounds of public interest and public health, and by expanding the definitions of "trade description" and "false trade description" so as to make punishable the use or application of certain types of false trade descriptions, not now punishable under the indian merchandise marks act, 1889 it is also proposed to empower the central ,-government to require that goods notified should have indicated on them the name and address of the manufacturer or of the person for whom the goods are made in view of the extensive amendments necessitated in the trade marks act, 1940, and the indian merchandise marks act, 1889, it has been thought fit to consolidate the law relating to trade and merchandise marks now found in the trade marks act, 1940, the indian merchandise marks act, 1889, and the indian penal code the notes on clauses explain the provisions of the bill wherever necessary new,delhl; morarji desai the 18th march, 1958 clause 2-the definitions in section 2 of the trade marks act, 1940, have been amplified by the inclusion of certain additional matters the definition of "trade mark" is now enlarged so as to, include certification trade marks for the purposes of registration, and to comprise registered and unregistered trade marks in use for the purposes of chapter x of the bill, which deals with the criminal law a new definition of the expression "high court" for the purposes of this bill has been incorporated the definition of "trade description" in section 2 of the indian merchandise marks act, 1889, has been expanded by including the following matters, namely, (a) descriptions as to quality of any goods, and of perfo"mance and behaviour in respect of drugs and articles of food, (b) name and address of the manufacturer, or dealer, (c) customs entry and (d) any description which is likely to be mistaken or misunderstood for a trade description similarly the definition of "false trade description" has been expanded by including misleading descriptions and by combining the matters set forth in subsection p) of section 2 and section 4 of the existing merchandise marks act, 1889 a comprehensive definition of "package" is included clause 3-the jurisdiction of the high court is to be determined with reference to the trade marks office within whose territorial limite; the place of business of the proprietor of the mark is situate clause 4-the trade marks registry and the patent office ere to be combined under a common head as in other countries this would facilitate co-ordination of the administration of the difterent branches of laws relating to industrial property and result in greater efficiency and economy clause 5-for facilitating the registration of trade marks, it is proposed to establish branch offices of the registry the territorial limits within which the offices of the trade marks registry are to function are to be notified by the central government clause 6-the register of trade marks is to be kept at the head office under the control of the registrar and copies of the register and certain other documents are to be kept at each branch of the registry clause 7-the register of trade marks is to be divided into two parts the existing register will be incorporated with part a register which will c,)mprise marks which are already on the register ::t the commencement of t~le acl and marks which may be registered in part a after the commmcement of the act part b register will contain trade marks regi:;tered in the part after the commencement of the act clause a-this clause reproduces the provision of section 5 of the trade marks act, 1940, with a minor amendment clause 9-the requisites for registration in parts a and b of the register are laid down in this clause a mark which is distinctive, that is to say, acmpted to distinguish, is registrable in part a of the register a less stringel}t test is proposed for registration in part b register a trade mark which is not distinctive but which is capable of distinguishing may be registered in part b of the register the establishment of the part b register will bring on the register many valuable trade marks which are in use but are not registrable, and facilitate the registration of these indian owned marks in foreign countries where a certificate of home registration is a condition precedent to registration such a provision is essential in view of the expanding export trade of this country the provision contained in the proviso to section 6 (3) of the trade marks act, 1940, has been omitted from this clause for purposes of clarity and as being no longer necessary in view of the introduction of the part b register registration of a trade mark by the proprietor in either part of the register does not preclude t~e registration in the other part clause 10-this clause is the same as section 7 of the trade marks act, 1940 clause h-this clause which corresponds to section 8 of the trade marks act, 1940, removes the ambiguity in that section, and is bomewhat wider in scope  cla'ube 12-this clause prohibits the registration by a person of a trade mark which is identical or deceptively similar to a trade mark already registered by a different proprietor there is a new provision which empowers the registrar in cases where separate applications for registration of the same or similar mark are made by different persons, to defer acceptance of a later n~bered appu-i!ation for registration until the earlier numbered conflicting application is disposed of this will remove the difficulties experienced under the present section 10 (3) of the trade marks act, 1940 the· provision in clause 12 (3) for concurrent registration is tne same as in section 10 (2) of the trade marks act, 1940 clause 13-this clause reproduces the provisions of section 9 of the trade marks act, 1940 clause 14-this is a new provision, which gives statutory recognition to an existing practice in the registry, and is made more specific and clear clauses 15 and 16-these clauses are the same as sections 11 and 12 respectively of the trade marks act, 1940 clause 17-this clause which corresponds to section 13 of the trade marks act, 1940, as now worded, removes ambiguity czause is-this clause deals with the procedure for making an application for registration necessary changes are made in the provisions of section 14 of the trade marks act, 1940, in view of the introduction of the part b register and the establishment of branch offices for filing applications clause 19-this is a new provision empowering the registrar to withdraw his order of acceptance of an application for registration in certain exceptional circumstances after giving notice and hearing the party 1£ so desired clause 20-sub-clause (1) corresponds to sub-section (1) of section 15 and the first part of the proviso to that sub-section of the trade marks act, 1940 sub-clause (2) contains the provision for readvertisement of an application for registration when it is advertised before acceptance or after it is permitted to be amended or corrected by the registrar, the latter being a new provision clause 21-this clause reproduces the provisions of section 15 (2), (3), (4) and (5) of the trade marks act, 1940, and incorporates in the clause itself the period within which notice of opposition and counter-statement have to be filed this is considered essential in order to minimise large delays which now occur in the disposal of oppositions to applications it also includes a new provision that the registrar may take into account a ground of objection whether relied upon by the opponent or not, in order that the purity of the register may be maintained claus, 22-this clause is new and empowers the registrar to amend or correct an application for registration or notice of opposition or counter-statement clause 23-this clause corresponds to section 16 of the trade marks act, 1940, with an additional provision empowering the registrar to correct the register or the certificate of registration in case of clerical errors or obvious mistakes clause 24-this clause is the same as section 17 of the trade marks act, 1940 clause 25-the period of renewal which is now 15 years has been reduced to 7 years this will eliminate from the register marks which have gone out of use, and will also increase the revenue of the registry so as to make it self-supporting subclause (4) contains a new useful provision cltwse 26-this clause is the same as section 19 of the trade marks act, 1940 clause 27-the proviso in favour of refused "old" trade marks contained in section 20 of the trade marks act, 1940, is now deleted, as it n,ow serves no useful purpose and is ambiguous and otiose clause 28-the references to part a register are consequential to the introduction of part b register the words "if valid" which were deleted previously have now been reintroduced in this clause so as to provide explicitly that a defendant in an action for infringement may question the validity of the plaintiff's registration but in such cases the issue as to validity must be determined by rectification proceedings in accordance with clause 111 of this bill the latter part of section 21 of the trade marks act, 1940, which deals with what constitutes infringement, has been made the subject of a separate clause 29 sub-clause (2) corresponds to the first part of section 22 (i) of the trade marks act, 1940 sub-clause (3), which is new, clarifies the law as to the rights of registered proprietors, where the same mark is registered by two or more different persons clause 29-this clause incorporates the latter part of section 21 of the trade marks act, 1940, but omits the provision contained in paragraph (b) of that section, as this provision is ambiguous and has received judicial strictures sub-clause (2), which is a new provision, provides that in an action for infringement in respect of part b registration, if the defendant proves that the use of the mark complained of is not likely to deceive or cause confusion, no injunction or other relief will he granted clause 30-sub-clause (1) of this clause corresponds to section 22 01 !he trade marks act, 1940, with verbal changes a new provision has been inserted in sub-clause {~) of this clause providing that the sale or other dealings in goods bearing a registered trade mark and lawfully acquired by a person, is not an intringement by reason only of the assignment of the mark by the registered proprietor subsequent to the acquisition of those goods clause 31-an explicit reference to section 56 is included in l:iub-clause (1) of this clause so as to clarify the law that this clause applies also to applications for rt!ctification under clause 56 subclause (~) is a new provision which is in accordance with judicial decision clause 32-the scope of the provision in section 24 of the trade marks act, 1940, is enlarged and the ambiguity in that section is removed clauses 33, 34, 35 and 36-the provisions of these clauses reproduce the provisions of sections 25, 26, 27 and 28 respectively of the trade marks act, 1940, with minor changes in clause 33 clause 37-this clause which follows section 29 of the trade marks act, 1940, contains certain additional new provisions for safeguarding the rights of assignee clause 3b-this clause corresponds to section 30 of the trade marks act, 1940 clauses 39 and 4o-these clauses are the same as sections31 and 32 respectively of the trade marks act, 1940 clause 41-this clause follows section 33 of the trade marks act, 1940 two important exceptions are, however, introduced by the explanation which states that advertisement of the assignment is not necessary where the assignrrent is for part' only of the registered goods together with the goodwill concerned in those goods, or where the assignment is for goods used in the export trade together with the goodwill of the business concerned in the export trade only clauses 42 to 47-these clauses replace the provisions of sections 34, 35, 36, 37 and 38 of the trade marks act, 1940, with lome minor amendments clause 48-this clause corresponds to section 39 of the trade marks act, 1940 sub-clause (1) contains an additional new provilion that no application for registration of registered user shall be ehtertained unless the agreement between the parties is in writinj and complies with the conditions laid down in the rules for preventing trafficking in trade marks clause 49-as questions of public policy are involved, the responsibility for permitting registration of registered user has been vested with the central government instead of with the registrar as at present the registrar has to pass orders of acceptance or conditional acceptance or refusal of an application only after receiving the necessary directions from the central government the central government, however, will not issue any directions against an applicant without giving him an opportunity of being heard clause 50-the registration of a multiplicity of different registered users of the same trade mark tends to create confusion in the minds of the public as to the true trade origin of the goods accordingly, it is proposed to fix a permissible maximum limit to the number of registered users on the register at any time in fe,o;:-pect of the same registered trade mark for the same goods, except in relation to goods for export from india, and where there is a common control between the business of the registered proprietor and the registered user clause 51-this clause is the same as section 40 of the trade marks act, ; 940 clause 52-this clause which deals with registrar's power to vary or cancel registration as registered user, provides for giving notice to all the registered users, on an application by the registered proprietor to vary or cancel registration and removes a lacuna in the trade marks act, 1940 it also contains a new provision that non-compliance by a regist~red user of the conditions of the agreement for quality control might be a ground for cancellation of the regisl"1ltion of the licence cla'llle 5s-explanation 1 is a new provision specifying expressly the circumstances where the subsequent formation of a partnership by a legistered user or a change in the constitution of the registered user firm, will not be deemed to constitute an assignment of the licence clauses 54 to 59-these clauses replace the provisions of sections 44, 45, 46, 47, 48 and 49 of the trade marks act, 1940 the power 01 the tribunal to rectify the register includes the power to remove a trade mark registered in part a register to part b register ctauses 60 to 69-these provisions are the same as in the section 50 to 59 of the trade marks act, 1940, with minor and consequential amendments a certification trade mark may be registered in part a of the register only clauses 70, 71 and 72-these clauses are the same as sections 61, 62 and 64 respectively of the trade marks act, 1940 clause 73-this clause deals with an existing provision for entering refused textile marks in the refused textile marks list (section 65 of the trade marks act, 1940) but contains a necessary new provision fixing the renewal period as seven years and making the continuance of a mark in the refused textile marks list after the expiration of each renewal period subject to payment of renewal fee  clause 74-this clause reproduces with minor amendments the ~rovisions of sub-sections (1) and (2) of section 12 of the indian merchandise marks act, 1889, and includes a reference to standard metres in view of government's decision to introduce the metric system of linear measurement clause 75-this clause corresponds to sections 20 and 19 of the indian merchandise marks act, 1889 clause 76-the provisions of sub-sections (1) and (2) of section 5 of the indian merchandise marks act, 1889, are combined and expanded so as to include both trade marks and trade descriptions, with slight verbal changes paragraph (e) of sub-clause (1) of this clause contains en important new provision hitherto the supply of false goods in response to an order given by reference to a registered or unregistered trade mark is not an offence under the indian penal code, or the indian merchandise marks act, 1889 such supply is now made an offence under chapter x of this bill clause 77-the clause expands the definition in section 480 of the indian penal code and contains comprehensive definitions of falsifying and falsely applying trade marks it is expressly provided that in any prosecution for any of these offences the burden of proving the assent of the proprietor is on the accused clause 78-this clause combines the provisions of section 6 of the indian merchandise marks act, 1889, relating to penalty for applying false tmde description and sections 480, 482 484 and 485 of the indian penal code, dealing with offences relating to trade marks, and is further enlarged and made more comprehensive the penalties are enhanced to two years and/or fine and are made uniform where the offences are in relation to goods being "drugs" or "articles of food" the punishment is made still higher as questions of public health are involved clause 79-this clause combines the provisions of section 7 ol the indiwl merchandise marks act, 1889, and of section 486 of the indian penal code the penalty for the offences has been increased and made the same as under clause 78 the scope of the clause is expanded by including as offences, failure to indicate, or indication of false descriptions as to, address of manufacturer or the person for whom the goods are manuiactured where such indications are required under clause u8 penalties in respect of offences in relation to goods being drugs or articles of food are enhanced to three years and or fine as under clause 78 clause 80-this clause reproduces the provision of section 12 (j) of the indian merchandise marks act, 1889 clause 81-this clause follows section 68 of the trade marks act, 1940 the provision in sub-section (4) of section 68 has been omitted, as it is no longer necessary cla-use 82-this is a new provision for making the improper description by a person of his office as the trade marks oftice, or the use of words which would reasonably lead to that belief an offence punishable under this act claus€ 83-this clause follows section 67 of the trade marks act, 1940 clause 84-this is a new provision designed to protect the acts by the accused which iqre lawfully permitted under this act, as, for instance, where there is concurrent registration or where having regard to the conditions and limitations the complainant's registration does not extend to the alleged use by the accused cluuse 85-this clause reproduces the provision of section 9 of the indian merchandise marks act, 1889 sub-clause (4) is a new provision clause 86-this clause reproduces with mere verbal changes the provisions of section 8 of the indial1- merchandise marks act, 1889 clause 87-this clause sets down the procedure to be follow2cl in a case where the accused charged with an offence under clause 78 or 79 sets up a defence that the registration of the trade mark is invalid the procedure is similar to that in civil suits where a similar defence is raised by the defendent under clause 111 clauses 88 and 89-these are new provisions introduced on account of the inherent difficulties involved in the trial of trade mark offences clause 90-this clause corresponds to section 13 of the indian merchandise marks act, 1889 cla'u'~f> 9l-this clause corresponds to section 14 of the indian merchandise marks act, 1889 cla1"o;e 92-this clause corresponds to section 15 of the indian merchandise marks act, 1889, but introduces certain changes in order to remove the existing ambiguity which has given rise to conflicting decisions by the courts and to make it clear that the com· mission of the offence as well as the discovery thereof both refer to the eommission of the offence charged clauses 93, 94, 95 and 96-these clauses reproduce sections 21, 22, 16 and 17 respectively of the indian merchandise marks act, 1889, with minor changes clauses 97, 98 and 99-the provisions of these clauses reproduce the provisions of section 70 of the trade marks act, 1940 sub· clause 97 (c) contains a new, but useful, provision that the registrar may review his own decision on an application made before him cta1l':e 100-this is a new provision for bringing on record in a proceeding under the act the successor in interest of the deceased person clause 10l-this is a new provision for regulating the practice with regard to grant of extension of time clause 102-this is a new provision ctatulc 103-this is a new provision empowering the registrar to give preliminary advice, when so requested, as to whether a trade merk is inherently adapted to distinguish for the purposes of registration in part a register, or capable of distinguishing for purposes of registration in part b register this provision will be of great help to the intending applicants for registration the clause provides for the refund of the fee if after approval of the mark the registrar raises objection subsequently when an application for its registration is made clause 104-this clause is the same as section 71 of the trade marks act, 1940 clause 105-the provision as to forum in section 73 of the trade marks act, 1940, in respect of suits for infringement is extended to passing off suits in general clause l06-the reliefs available in an action for infringement or for passing off are specified in this clause these are injunction, account of profits or damage and delivery-up in case of innocent infringement damages (other than nominal damages) or account of profits are not to be granted clauses 107 and 108-these clauses contain new provisions prescribing the procedure for applications for rectification of the register and appeals from the registrar's orders and for infringement suits the issue as to validity of registration shall be determined only on an application for rectification of the register before the high court where such issue is raised in an infringement action the orders of the high court relating to rectification of the register are to be communicated to the registrar, who shall carry out the court's directions clause 109-this clause corresponds to section 76 of the trade marks act, 1940, and provides for an appeal from any order or decision of the registrar the clause prescribes also the procedure to be followed in such appeals clause 110-this clause replaces the provisions of section 77 of the trade marks act, 1940 claus,e 111-this clause whicn is new provides for stay of proceedings where the validity of registration is attacked by either party in an action for infringement the party raising the issue should apply to the high court for rectification of the register and the order made on the application for rectification is binding on both the parties interim reliefs may, however, be granted by the trial court passing the stay order clause 112-this clause specifies the types of cases in which the registrar will be entitled to appear and be heard beforea court clause 113-this clause is the same as section 74a of the trade marks act, 1940 clause 114-this is a new provision for removing a lacuna in the trade marks act, 1940 clause 115-this is a new provision which is considered necessary and useful clause 116-this clause is the same as section 75 of the trade marks act, 1940 clame 117-this is a new provision which is designed to avoid inconvenience to the officials of the registry, caused by frivolous requests made by parties to produce the original official records in legal proc~ngs clause 118-this clause reproduces the provisions of section 12a of the merchandise marks act, 1889, with an additional provision empowering government to require that certain goods or classes of goods which are notified should contain an indication of the name and address of the manufacturer, or the person for whom the goods are manufactured clause 119-this is a new useful provision and will assist the registered proprietor to trace the source of manufacture of the infringing goods clause 120-this clause corresponds to section 78 of the trade marks act, 1940, and is modijied to remove the existing ambiguity clause 121-this clause contains a new useful provision to prevent groundless threats -by unscrupulous persons clause 122-this is a new provision and is in accordance with the existing practice of the registry clause 123-this clause reproduces section 79 of 'the trade marks act, 1940, and is enlarged by the inclusion of "trade name" clause 124-this clause corresponds to section 80 of the trade marks act, 1940, and contains an additional provision tbat any person in the sole and regular employment of the principal may also act in lieu of the principal clause 125-this is a new useful provision which will facilitate search for conflicting marks by the registry and by the public, see clause 126 clause 126-this is a new provision which specifies what documents of the registry are open to public inspection, and provides that certified copies of such documents may be obtained from the registry on payment of the prescribed fees clause 127-this clause prescribes that fees shall be paid in respect of all proceedings under the act and that the registrar shall not do any act unless the fee payable in respect of doing ot the act, is paid clause 128-this clause reproduces section 18 of the indian merchandise marks act, 1889 clause 129-for removing any possibility of confusion, this new clause has been added which prohibits the registration of declaration of ownership of trade marks under the indian registration act, 1908, unless such mark is registered as a trade mark clause 130-this clause is the same as section 82 of the trade marks act, 1940 clauses 131 and 132-these replace section 83 of the trade marks act, 1940, and contain new provisions as to convention appli cations and as to reciprocity clause 133-this clause contains the provisions of section 84 of the trade marks act, 1940, and includes necessary changes consequential on the incorporation of the proyisions of the indian merchandise marks act, 1889, in the bill clauses 134, 135 and 136-these clauses are self-explanatory a trade marks registry already exists at bombay with branches at calcutta and bangalore to administer the trade marks act, 1940, but tht! registry will ne~ to be considerably strengthened in order to cope with the additional functions contemplated under the new bill for amending the law relating to the registration of trade marks for example, a new register called "part b register" has to be maintained and this would mean an increase in the number of marks to be registered, and consequent additional staff also a few more branches of the registry would have to be opened to facilitate the convenience of the public and additional staff would be necessary for these branches the average annual expenditure for the last three years in connection with the working of the trade marks registry has been rs 8'1 lakhs the average of the fees realised during the said period is rs 4' 9 lakhs the passing of this bill will necessarily involve some additional expenditure, but it is anticipated that all the expenditure of the registry will be balanced by the fees to be realised on new items for which fees have been prescribed, the anticipated increase in revenue consequent on the introduction of part b register, and the resultant economy consequent on the amalgamation of the patent office and the trade marks registry clause 65 which is a reproduction of section 56 of the trade marks act, 1940, provides for the regulation by the central government by general or special order of regulations made by users of certification marks respecting the cases in' which goods are to be certified or the authorisation of the use of such marks the nature of the regulatory power which will be exercised by the issue of general or special orders is generally indicated in the clause itself clause 75 corresponding to sections 19 and 20 of the indian merchandise marks act, 1889, provides for rules being made with respect to the testing of goods, selection of samples for such testing, the manner in which textile goods shall be marked and for precisely defining whjlt is meant by the expression "piece goods ordinarily sold by the length or by the piece" this definition necessarily will have to be left flexible it is also necessary for the purposes of muse 74 to vest power in the central government to exempt premises of a factory used for the manufacture, bleaching, dyeing or ftnishing of cotton yarn or cotton thread from the provisions of that clause clause 95 corresponding to section 16 (2) of the indian merchandise marks act, 1889, authorises the central government to issue instructions for the limits of variation as regards number, quantity, measure, gauge or weight which should be recognised by criminal courts as permissible variations this is necessary both for the purpose of preventing harassment and for the purpose of affording guidance to criminal courts in the matter of permissible variations clause 110 authorises the high court to make rules consistent with this law as to the conduct and procedure of all proceedings before it such a rule-making power is generally vested in the high courts clause 133 deals with the rule-making power of the central government generally the matters in respect of which rules may be made are set out in that clause and all the matters set out therein are purely ancillary to the proper implementation of this law (sub-clause (2) (h) authorises the central government to prescribe the classes of textile goods to the trade marks used in relation to which chapter ix will apply a rigid definition will not be suitable in giving this power to the central government clause 71  mfullows the pattern of the existing law as contained in section 62 of the trade marks act, 1940 sub-clause (2) (8) authorises the central government to prescribe the classes of goods which are to be included in the expression "piece goods such as are ordinarily sold by the length or by the piece", am reference has already been made to this in the paragraph dealing with clause 75 the rule-making powers sought to be conferred are of a normal character (d) where it is probable that pecuniary compensation aannot be got for the invasion; (e) where the injunction is necessary to prevent a multiplicity of judicial proceedings '-, explanation-for the purpose of this section a trademark is property                        illustrations -                   -                                        -                                                            -    (w) a improperly uses the trademark of bb may obtain an injunction to restrain the user, provided that b's use of the trade-mark is honest        -                         -                                           -                                                              -  extracts from the sea customs act, 1878 (8 of 1878) - • - • chapter iv prohibitions and restrictions of importation and exportation18 no goods specified in the following clauses shall be brought, whether by l~d or sea, into india:-' - - • - (d) goods having applied thereto a counterfeit trade-mark within the meaning of the indian penal code, or a false trade- 45 of ib60 description within the meaning of the indian merchandise marks f 88 act, 1889; 4 0 r 9 - - - - (f) piece-goods manufactured outside india, such as are ordinarily sold by length or by the piece, if each piece has not been conspicuously marked- - (i) with the name of the manufacturer, exporter, or wholesale purchaser in india, of the goods, and (ii) with the real length of the piece in standard yards, inscribed in the international form of numerals; - - - (h) goods which are required by a notification under section 12a of the indian merchandise marks act, 1889, to have appued 4 of r8bp to them an indication of the country or place in which they were made or produced, unless such goods show sueh indication applied in the manner specified in the notification; (i) cotton yam manufactured outside india, such as is ordinarily imported in bundles, if each bundle containing such yarn has not been conspicuously marked-(i) with the oome of the manufacturer, exporter, or wholesale purchaser in india, of the goods, and (ii) with an indication of the weight and the count of the yarn contained in it, in accordance with the rules made under section 20 of the indian merchandise marks act, 1889; 4 of 1889· (j) cotton sewing, darning, crochet or handicraft thread manufactured outside india, if each of the units in which the thread is supplied has not been conspicuously marked-(i) with the name of the manufacturer, exporter, or wholesale purchaser in india, of the goods, end 4 uf r889 - (ii) with the length or weight of the thread contained in it and in such other manner as is required by the rules made under section 20 of the indian merchandise marks act, 1889 - - - - "offence" and "punishment under the indian penal code" are not intended as definitions of the offences and  punishmerely as references to the subject of the section, the number of which is given in the first column i z 3 4 5 6 7 sec-offence whether the whether a whether whether punishment under by what court tion police may warrant or a bailable compoundable or thelndian triable arrest without summons sball or not not penal code warrant or not ordinarily issue in the first instance 483 q)unterfeiting a sball not arrest warrant bailable compoundable when imprisonment of presidency magiatrade or property without warrant permission is given either description trate or magi stt1ite mark used by by the court before for z years, or  of the first or another, with which the v·"osecufine, or both secondcl  intent to cilltse tion is pending damage or injury  - -   - - - 485 fraud,dently marking shall not arrest summons bailable not compoundable imprisonment of court of session, or having posseswithout areither deacrip-presidency magia- -sion of any die, rant tion for 3 years, trate or m";:-plate or other or fine, or both trate of the t instrument for class counterfeiting any public or private property or trademark 486 knowingly selling dino ditto ditto compoundable with imprisonment of presidency magi--goods marked permission of either description trate or magiswith a counterthe court before for i year, or trate of the first feit property or which the profine, or both or  second ela  trade-mark aecution is pend-- ing  - - -   - - - - a bill to provide for the registration and better protection of trade marks and for the prevention of the use of fraudulent marks on merchandise the president has, in pursuance of clause (3) of article 117 of the constitution of india, recommended to lok sabha, the consideration of the bill m n kaul, secretary (shri morarji desai, minister of commerce and industry) 