Grounds and procedure of Rectification of trade mark register , Part 2
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Again under section 23 of the Act, registration of a trade mark is deemed to be prima facie evidence of the validity of original registration of the trade mark and of all subsequent assignments and transmissions. And under section 24 of the Act, the validity of original registration of a trade mark cannot be challenged after expiration of seven years from the date of original registration except on grounds of fraud or that the mark offends against the provisions of section 8(a) of the Trade Marks Act as to deceptive trade marks.
Rectification proceedings can be filed by any “person aggrieved” before the High‑Court of the ‘Registrar of Trade Marks under section 37 on grounds of non-use or, on any of the grounds given under section 46 of the Trade Marks Act; 1940.
The expression “person aggrieved” has been construed in several cases. According to Bowen; L. J. Powell’s T. M. “Persons who are in soiree’ way or the other substantially interested in having the mark removed from the, Register or persons who would be substantially damaged if the ‘mark remained on the Register” would be persons aggrieved. Furthermore; the scope of the expression is not confined to persons who would in the game trade and deal in the same goods but includes persons who being in the same trade might reasonably be expected to deal in the same article; though at the moment they had not formed a clear determination to do‑so. In re: Reviere’s T. M.’9 It was observed: “If a man is hampered in the future by the fact that a trade mark is on the register which ought not to be there, he is a person who is sufficiently aggrieved to come within the section. A foreigner may also be a person aggrieved if he is otherwise qualified to apply for rectification.
Rectification of the register can be ordered in cases where the original registration was wrongly procured as well as in those cases arising as a result, of events occurring after registration. In both cases it mast, however; be shown that the entry is, wrongly made or is wrongly remaining on tie register by virtue of some other section of the Act. However, in all cases the power to remove a registered trade mark is discretionary with the Registrars’ and he may not order cancellation of registration where mere technical formalities have not observed at the time of registration.