Law:

Section:

Trade Marks Act (V of 1940)--S. 37(1), proviso---Civil Procedure Code (V of 1908), S.11---Constitution of Pakistan (19,73), Art.185(3)---Leave to appeal was granted to consider question as to whether the two Courts below had placed construction on proviso to S.37(1) of the Act, in accordance with law with reference to plea of res judicata by the respondent. (b) Trade Marks Act (V of 1940)-- ----S. 37---Interpretation, application and scope of S.37. A plain reading of section 37 of Trade Marks Act, 1940 indicates that a registered trade mark may be taken off the register in respect of any goods upon an application by any person aggrieved to a High Court or to the Registrar on either of the grounds mentioned in clauses (a) and (b) of subsection (1). The proviso, provides that the Tribunal my refuse an application under clause (a) or clause (b) in relation to any goods if it is shown that there has been, before the relevant date or during the relavant period as the case may be, bona fide use of trade mark by proprietor thereof for the time being in relation to the goods of the same description, being goods in respect of which trade mark is registered except in two cases referred to in the opening part of the proviso, namely, (i) where the applicant has been permitted under subsection (2) of section 10 to register an identical or nearly, resembling trade mark in respect of the goods in question; or (ii) where the Tribunal is of opinion that he might properly be permitted so to register such a trade mark. Subsection (2) authorises the High Court and the Registrar to impose on the registration of fast-mentioned trade mark such limitations as it thinks proper for securing that the registration shall cease to extend to such use if the circumstances mentioned in clauses (a) or (b) thereof are present in a case, namely, (i) non-user of the trade mark in terms of clause (b) of subsection (1) by the proprietor of the trade mark and (ii) a person has been permitted under subsection (2) of section 10 to register an identical or nearly resembling trade mark in respect of those goods which were the subject-matter of registration. Under subsection (3) of section 37, it has been…

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