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1985 (9) TMI 340 - SC - Companies LawWhether a proprietor of a trade mark who intends to use it solely by a registered- user is entitled to registration of his trade mark, under Sec. 18 of the Trade Mark Act? Held that:- To enable the proprietor of a trade mark who has got it registered on the ground that he intends to use the trade mark to avail himself of the fiction created by section 48(2), he must have had in mind at the date of his application for registration some person to whom he intends to allow the use of the trade mark as a registered user. This would eliminate all chances of trafficking in a trade mark. If an applicant for registration did not have at the date of his application for registration a particular registered user in view, he cannot be said to have had a bona fide intention to use the trade mark and in such an event he cannot resist ar. application made under clause (a) of section 46(1) of the 1958 Act. Turning now to the present Appeal, the facts on the record show that only when it was decided to introduce 'DRISTAN' tablets in the Indian market through the Indian Company that the Appellant made its application to register the trade mark 'DRISTAN'. There was a close connection in the course of trade between the Appellant and the Indian Company. The Appellant owned 40 per cent of the shareholding in the Indian Company. It had entered into a technical collaboration agreement with the Indian Company which provided for strict quality control and for formulae and services to be provided by the Appellant. The manufacture, marketing and advertising of all products under the said agreement were to be under the control of the Appellant. There was no royalty payable by the Indian Company to the Appellant in respect of the use of the trade mark 'DRISTAN'. In the event of the collaboration agreement being terminated by reason of the happening of any of the events mentioned in the said agreement, amongst which events was the shareholding of the Appellant becoming less than 40 per cent, the Indian Company was to cease to be entitled to manufacture the tablets 'DRISTAN' or to use its formula or to use the trade mark 'DRISTAN'. There was here, therefore, no question of any trafficking in a trade mark. In these circumstances, the intention of the Appellant to use the trade mark 'DRISTAN' through the Indian Company which was subsequently to get itself registered as the registered user of the said trade mark cannot but be characterized as bona fide. Appeal allowed.
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