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Section 35 – The Trade and Merchandise Marks Act,1958

The Trade and Merchandise Marks Act,1958

Section 35. Saving for words used as name or description of an article or substance

(1) The registration of a trade mark shall not be deemed to have become invalid by reason only of any use after the date of the registration of any word or words which the trade mark contains or of which, it consists as the name or description of an article or substance:

Provided that, if it is proved either-

(a) That there is a well-known and established use of the said word as the name or description of the article or substance by a person or persons carrying on a trade therein, not being used in relation to goods connected in the course of trade with the proprietor or a registered user of the trade mark or (in the case of a certification trade mark) goods certified by the proprietor; or

(b) That the article or substance was formerly manufactured under a patent, that a period of two years or more after the cesser of the patent has elapsed, and that the said word is the only practicable name or description of the article or substance;

The provisions of sub-section (2) shall apply.

(2) Where the facts mentioned in Cl. (a) or Cl. (b), of the proviso to sub-section (1) are proved with respect to any words, then,-

(a) For the purposes of any proceedings under Sec. 56-

(i) If the trade mark consists solely of such words, the registration of the trade mark, so far as regards registration in respect of the article or substance in question or of any goods of the same description, shall be deemed to be an entry wrongly remaining on the register:

(ii) If the trade mark contains such words and other matter, the Tribunal in deciding whether the trade mark shall remain on the register, so far as regards registration in respect of the article or substance in question and of any goods of the same description, may, in case of a decision in favour of its remaining on the register require as a condition thereof that the proprietor shall disclaim any exclusive right to the use in relation to that article or substance and any goods of the same description, of such words:

Provided that no disclaimer shall affect any rights of the proprietor of a trade mark except such as arise out of the registration of the trade mark in respect of which the disclaimer is made;

(b) For the purposes of any other legal proceeding relating to the trade mark, –

(i) If the trade mark consists solely of such words, all rights of the proprietor under this Act or any other law to the use of the trade mark in relation to the article or substance in question or to any goods of the same description; or

(ii) If the trade mark contains such words and other matter, all such rights of the proprietor to the use of such words, in such relation as aforesaid;

Shall be deemed to have ceased on the date at which the use mentioned in Cl. (a) of the proviso to sub-section (1), first became well-known and established, or at the expiration of the period of two years mentioned in Cl. (b) of the said proviso.

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The Trade and Merchandise Marks Act,1958

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