46. REMOVAL FROM REGISTER AND IMPOSITION OF LIMITATIONS ON GROUND OF NON-USE. -(1) Subject to the provisions of Sec. 47, a registered trade mark may be taken of the register in respect of any of the goods in respect of which it is registered on application made in the prescribed manner to the High Court or to the Registrar by any person aggrieved on the ground either. -
(a) That the trade mark was registered without any bona fide intention on the part of the applicant for registration that it should be used in relation to those goods by him or, in a case to which the provisions of Sec. 45 apply, by the company concerned, arid that there has in fact, been no bona fide use of the trade mark in relation to those goods by any proprietor thereof for the time being up to a date one month before the date of the application; or
(b) That up to a date one month before the date of the application, continuous period of five years or longer has elapsed during which the trade mark was registered and during which there was no bona fide use thereof in relation to those goods by any proprietor thereof for the time being:
Provided that, except where the applicant has been permitted under sub-section (3) of Sec. 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 lie, might properly be permitted so to register such a trade mark, the Tribunal may refuse an application under Cl. (a) or Cl. (b) in relation 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 same description, being goods in respect of which the trade 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 Cl. (b) of sub-section (1) are shown to exist so far as regards non -use of the traded mark in relation to goods to be sold, or otherwise traded in, in a particular place in India (otherwise than for export from Initial, or in relation to goods to be exported to a particular market outside India; and
(b) A person has been permitted under sub-section (3) of Sec. 12 to register an identical or nearly resembling trade mark in respect of those goods under a registration extending to use in rotation 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 application by that person in the prescribed manner 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 proper for securing that that registration shall cease to extend to such use.
(3) An applicant shall not be entitled to rely for the purpose of Cl. (b) of subsection (1) or for the purposes of sub- section (2) on any non-use of a trade mark which is shown to have been due to special circumstances in the trade and not to any intention to abandon or not to use the trade mark in relation to the goods to which the application relates.
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