Law:

Section:

Trade Marks Act, 1940 (X of 1940)-- ----S. 37(1)(b) and 76--Registration of trade marks--Business of manufacturing and exporting cosmetic items--Expunction of registered trademarks--Non use of trademarks for over five years--Issue of removal of trademarks from registrar of trademark--Revocation of registered trade mark--No bonafide use of trade marks by its proprietor which be computed from date one month before date of application--Validity--Non-use of these trademarks by appellant during crucial period within five years was under special circumstances due to such legal bar and not malafide, thus, furnished presumption of bonafide non-use of trademarks by them during such period--If these documents which had remained unchallenged and un-rebutted, were taken into consideration then there remains no continuous period of non-use of trademarks for five years before date of filing application by respondent for removal/revocation of trademarks of appellant, which was a condition precedent under relevant provision of law for pressing into service its penal consequences--Burden of proof regarding two material facts, (a) whether there was no bonafide use of registered trademarks by appellant for a continuous period of five years upto a date one month before date of application without any lawful excuse or special circumstances as envisaged under Section 37(3) Trade Marks Act, and (b) whether attempt of respondent for seeking registration of word "WELLA" as their trademark was bonafide, was squarely upon respondent, which was to be proved beyond reasonable doubt, so as to invoke its penal consequences against appellant, but, they failed to discharge--Appellant could have appointed some registered user under Section 39 of Act of 1940, or they could have assigned their trademark by invoking Section 28 of Act of 1940, or granted license to some person to avoid penal consequences of Section 37(1)(b), are equally without force as Act of 1940 does not envisage any such compulsion to avoid consequence of Government ban, which could be justly and fairly considered as special circumstances in trade within meaning of Section 37(3) and not to any intention of appellant to abandon…