85. CONSIDERATION BY THE CENTRAL GOVERNMENT. -The Central Government, on receipt of an application for registration as registered user forwarded to it by the Registrar under sub-section (2) of See. 49, shall, if satisfied that the application and the accompanying documents comply with the provisions of this Act and the rules, consider, whether the application should be allowed having regard to the matter specified in sub-section (3) of that section, and in doing so may take into account all or any of the following matters, -
(1) Whether the permitted use if allowed would contravene the policy of the act, which is to prevent trafficking in trade marks;
(2) Whether the registered proprietor has registered the trade mark without any bonafide intention to use it in relation to his goods in the course of trade or solely or mainly for the purpose of permitting others to use it under agreement for registered user; and
(3) Whether the registered proprietor has acquired title to the trade mark by assignment without any bona fide intention to use it in relation to his goods in the course of trade or solely or mainly for the purpose of permitting others to use it under agreements for registered user.
Explanation I. - For considering the bonafides of the registration of the trade mark under Cl. (2) regard shall be had inter alia to –
(a) Whether the goods for which the trade mark is registered are similar to or are different from the goods in which the registered proprietor has been trading or dealing before the registration of the mark;
(b) Whether the registered proprietor has ever used the mark in question in relation to his goods in the course of trade before the date of the agreement for registered user, and if so, the amount and duration of such user; and
(c) Whether the terms as to royalty and other remuneration payable by the proposed registered user are reasonable taking into account the expenses, which the registered proprietor is likely to incur in exercising control over the permitted use.
Explanation II. -For considering the bonafides of the acquisition of title under Cl. (3) regard shall be had, besides the matters set out in Explanation I, to the following further matter, namely, whether the registered proprietor has obtained assignment of the other registered trade marks and if so, whether he has dealt with such other marks by way to assignment of registered user.
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