37. Power of registered proprietor to assign and give receipts.

37. Power of registered proprietor to assign and give receipts.-The person for the time being entered in the register as proprietor of a trade mark shall, subject to the provisions of this Act and to any rights appearing from the register to be vested in any other person, have power to assign the trade mark, and to give effectual receipts for any consideration for such assignment.

38. Assignability and transmissibility of registered trade marks.

38. Assignability and transmissibility of registered trade marks.-Notwithstanding anything in any other law to the contrary, a registered trade mark shall, subject to the provisions of this Chapter, be assignable and transmissible, whether with or withou the goodwill of the business concerned and in respect either of all the goods or services in respect of which the trade mark is registered or of some only of those goods or services.

39. Assignability and transmissibility of unregistered trade marks.

39. Assignability and transmissibility of unregistered trade marks.-An unregistered trade mark may be assigned or transmitted with or without the goodwill of the business concerned.

40. Restriction on assignment or transmission where multiple exclusiverights would be created.

40. Restriction on assignmnt or transmission where multiple exclusive rights would be created.-(1) Notwithstanding anything in sections 38 and 39, a trade mark shall not be assignable or transmissible in a case in which as a result of the assignment or t ansmission there would in the circumstances subsist, whether under this Act or any other law, exclusive rights in more than one of the persons concerned to the use, in relation to- (a) same goods or services; (b) same description of goods or services; (c) goods or services or description of goods or services which are associated with each other, of trade marks nearly resembling each other or of identical trade mark, if having regard to the similarity of the goods and services and to the similarity of the trade marks, the use of the trade marks in exercise of those rights would be likely to decei e or cause confusion: Provided that an assignment or transmission shall not be deemed to be invalid under this sub-section if the exclusive rights subsisting as a result thereof in the persons concerned respectively are, having by two or more of those persons in relation to goods to be sold, or otherwise traded in, within India otherwise than for export therefrom, or in relation to goods to be exported to the same market outside India or in relation to servi regard to limitations imposed thereon, such as n t to be exercisable es for use at any place in India or any place outside India in relation to services available for acceptance in India. (2) The proprietor of a registered trade mark who proposes to assign it may submit to the Registrar in the prescribed manner a statement of case setting out the circumstances and the Registrar may issue to him a certificate stating whether, having regard to the similarity of the goods or services and of the trade marks referred to in the case, the proposed assignment would or would not be invalid under sub-section (1), and a certificate so issued shall, subject to appeal and unless it is shown that the c rtificate was obtained by fraud or misrepresentation, be conclusive as to the validity or invalidity under sub-section (1) of the assignment in so far as such validity or invalidity depends upon the facts set out in the case, but, as regards a certificat in favour of validity, only if application for the registration under section 45 of the title of the person becoming entitled is made within six months from the date on which the certificate is issued.

41. Restriction on assignment or transmission when exclusive rights wouldbe created in different parts of India.

41. Restriction on assignment or transmission when exclusive rights would be created in different parts of India.-Notwithstanding anything in sections 38 and 39, a trade mark shall not be assignable or transmissible in a case in which as a result of the ssignment or transmission there would in the circumstances subsist, whether under this Act or any other law- (a) an exclusive right in one of the persons concerned, to the use of the trade mark limited to use in relation to goods to be sold or otherwise traded in, in any place in India, or in relation to services for use, or services available for acceptance in any place in India; and (b) an exclusive right in another of these persons concerned, to the use of a trade mark nearly resembling the first-mentioned trade mark or of an identical trade mark in relation to- (i) the same goods or services; or (ii) the same description of goods or services; or (iii) services which are associated with those goods or goods of that description or goods which are associated with those services or services of that description, limited to use in relation to goods to be sold or otherwise traded in, or services for use, or available for acceptance, in any other place in India: Provided that in any such case, on application in the prescribed manner by the proprietor of a trade mark who proposes to assign it, or by a person who claims that a registered trade mark has been transmitted to him or to a predecessor in title of his si ce the commencement of this Act, the Registrar, if he is satisfied that in all the circumstances the use of the trade mark in exercise of the said rights would not be contrary to the public interest may approve the assignment or transmission, and an assi nment or transmission so approved shall not, unless it is shown that the approval was obtained by fraud or misrepresentation, be deemed to be invalid under this section or section 40 if application for the registration under section 45 of the title of th person becoming entitled is made within six months from the date on which the approval is given or, in the case of a transmission, was made before that date.

42. Conditions for assignment otherwise than in connection with thegoodwill of a business.

42. Conditions for assignment otherwise than in connection with the goodwill of a business.-Where an assignment of a trade mark, whether registered or unregistered is made otherwise than in connection with the goodwill of the business in which the mark h s been or is used, the assignment shall not take effect unless the assignee, not later than the expiration of six months from the date on which the assignment is made or within such extended period, if any, not exceeding three months in the aggregate, as the Registrar may allow, applies to the Registrar for directions with respect to the advertisement of the assignment, and advertises it in such form and manner and within such period as the Registrar may direct.

Explanation.-For the purposes of this section, an assignment of a trade mark of the following description shall not be deemed to be an assignment made otherwise than in connection with the goodwill of the business in which the mark is used, namely:- (a) an assignment of a trade mark in respect only of some of the goods or services for which the trade mark is registered accompanied by the transfer of the goodwill of the business concerned in those goods or services only; or (b) an assignment of a trade mark which is used in relation to goods exported from India or in relation to services for use outside India if the assignment is accompanied by the transfer of the goodwill of the export business only.

43. Assignability and transmissibility of certification trade marks.

43. Assignability and transmissibility of certification trade marks.-A certification trade mark shall not be assignable or transmissible otherwise than with the consent of the Registrar, for which application shall be made in writing in the prescribed ma ner.

44. Assignability and transmissibility or associated trade marks.

44. Assignability and transmissibility or associated trade marks.-Associated trade marks shall be assignable and transmissible only as a whole and not separately, but, subject to the provisions of this Act, they shall, for all other purposes, be deemed t have been registered as separate trade marks.

45. Registration of assignments and transmissions.-(1) Where a person becomes entitled by assignment or transmission to a registered trade mark, he shall apply in the prescribed manner to the Registrar to register his title, and the Registrar shall, on r ceipt of the application and on proof of title to his satisfaction, register him as the proprietor of the trade mark in respect of the goods or services in respect of which the assignment or transmission has effect, and shall cause particulars of the ass gnment or transmission to be entered on the register: Provided that where the validity of an assignment or transmission is in dispute between the parties, the Registrar may refuse to register the assignment or transmission until the rights of the parties have been determined by a competent court. (2) Except for the purpose of an application before the Registrar under sub-section (1) or an appeal from an order thereon, or an application under section 57 or an appeal from an order thereon, a document or instrument in respect of which no entry has een made in the register in accordance with sub-section (1), shall not be admitted in evidence by the Registrar or the Appellate Board or any court in proof of title to the trade mark by assignment or transmission unless the Registrar or the Appellate Bo rd or the court, as the case may be, otherwise directs.

46. Proposed use of trade mark by company to be formed, etc.

46. Proposed use of trade mark by company to be formed, etc.-(1) No application for the registration of a trade mark in respect of any goods or services shall be refused nor shall permission for such registration be withheld, on the ground only that it a pears that the applicant does not use or propose to use the trade mark if the Registrar is satisfied that- (a) a company is about to be formed and registered under the Companies Act, 1956 (1 of 1956) and that the applicant intends to assign the trade mark to that company with a view to the use thereof in relation to those goods or services by the company, or (b) the proprietor intends it to be used by a person, as a registered user after the registration of the trade mark. (2) The provisions of section 47 shall have effect, in relation to a trade mark registered under the powers conferred by this sub-section, as if for the reference, in clause (a) of sub-section (1) of that section, to the intention on the part of an appl cant for registration that a trade mark should be used by him there were substituted a reference to the intention on his part that it should be used by the company or registered user concerned. (3) The tribunal may, in a case to which sub-section (1) applies, require the applicant to give security for the costs of any proceedings relating to any opposition or appeal, and in default of such security being duly given, may treat the application a abandoned. (4) Where in a case to which sub-section (1) applies, a trade mark in respect of any goods or services is registered in the name of an applicant who, relies on intention to assign the trade mark to a company, then, unless within such period as may be pr scribed or within such further period not exceeding six months as the Registrar may, on application being made to him in the prescribed manner, allow, the company has been registered as the proprietor of the trade mark in respect of those goods or servic s, the registration shall cease to have effect in respect thereof at the expiration of that period and the Registrar shall amend the register accordingly.

47. Removal from register and imposition of limitations on ground ofnon-use.

47. Removal from register and imposition of limitations on ground of non-use.(1) A registered trade mark may be taken off the register in respect of the goods or services in respect of which it is registered on application made in the prescribed manner o the Registrar or the Appellate Board by any person aggrieved on the ground either- (a) that the trade mark was registered without any bona fide intention on the part of the applicant for registration that it should be used in relation to those goods or services by him or, in a case to which the provisions of section 46 apply, by the c mpany concerned or the registered user, as the case may be, and that there has, in fact, been no bona fide use of the trade mark in relation to those goods or services by any proprietor thereof for the time being up to a date three months before the date of the application; or (b) that up to a date three months before the date of the application, a continuous period of five years from the date on which the trade mark is actually entered in the register or longer had elapsed during which the trade mark was registered and durin which there was no bona fide use thereof in relation to those goods or services by any proprietor thereof for the time being: Provided that except where the applicant has been permitted under section 12 to register an identical or nearly resembling trade mark in respect of the goods or services in question, or where the tribunal is trade mark, the tribunal may refuse an application under clause (a) or clause (b) in relation to any goods or services, if it is shown that there has been, before the relevant date or during the relevant period, as the case may be, of opinion that he might properly be permitte so to register such a bona fide use of the trade mark by any proprietor thereof for the time being in relation to- (i) goods or services of the same description; or (ii) goods or services associated with those goods or services of that description being goods or services, as the case may be, in respect of which the trade mark is registered. (2) Where in relation to any goods or services in respect of which a trade mark is registered- (a) the circumstances referred to in clause (b) of sub-section (1) are shown to exist so far as regards non-use of the trade mark in relation to goods to be sold, or otherwise traded in a particular place in India (otherwise than for export from India), or in relation to goods to be exported to a particular market outside India; or in relation to services for use or available for acceptance in a particular place in India or for use in a particular market outside India; and (b) a person has been permitted under section 12 to register an identical or nearly resembling trade mark in respect of those goods, under a registration extending to use in relation to goods to be so sold, or otherwise traded in, or in relation to good to be so exported, or in relation to services for use or available for acceptance in that place or for use in that country, or the tribunal is of opinion that he might properly be permitted so to register such a trade mark, on application by that person in the prescribed manner to the Appellate Board or to the Registrar, the tribunal may impose on the registration of the first-mentioned trade mark such limitations as it thinks proper for securing that that registration shal cease to extend to such use. (3) An applicant shall not be entitled to rely for the purpose of clause (b) of sub-section (1) or for the purposes of sub-section (2) on any non-use of a trade mark which is shown to have been due to special circumstances in the trade, which includes re trictions on the use of the trade mark in India imposed by any law or regulation and not to any intention to abandon or not to use the trade mark in relation to the goods or services to which the application relates.

48. Registered users.-(1) Subject to the provisions of section 49, a person other than the registered proprietor of a trade mark may be registered as a registered user thereof in respect of any or all of the goods or services in respect of which the tra e mark is registered. (2) The permitted use of a trade mark shall be deemed to be used by the proprietor thereof, and shall be deemed not to be used by a person other than the proprietor, for the purposes of section 47 or for any other purpose for which such use is material nder this Act or any other law.

49. Registration as registered user.-(1) Where it is proposed that a person should be registered as a registered user of a trade mark, the registered proprietor and the proposed registered user shall jointly apply in writing to the Registrar in the pres ribed manner, and every such application shall be accompanied by- (a) the agreement in writing or a duly authenticated copy thereof, entered into between the registered proprietor and the proposed registered user with respect to the permitted use of the trade mark; and (b) an affidavit made by the registered proprietor or by some person authorised to the satisfaction of the Registrar to act on his behalf,- (i) giving particulars of the relationship, existing or proposed, between the registered proprietor and the proposed registered user, including particulars showing the degree of control by the proprietor over the permitted use which their relationship w ll confer and whether it is a term of their relationship that the proposed registered user shall be the sole registered user or that there shall be any other restriction as to persons for whose registration as registered users application may be made; (ii) stating the goods or services in respect of which registration is proposed; (iii) stating the conditions or restrictions, if any, proposed with respect to the characteristics of the goods or services, to the mode or place of permitted use, or to any other matter; (iv) stating whether the permitted use is to be for a period or without limit of period, and, if for a period, the duration thereof; and (c) such further documents or other evidence as may be required by the Registrar or as may be prescribed. (2) When the requirements of sub-section (1) have been complied with, the Registrar shall register the proposed registered user in respect of the goods or services as to which he is so satisfied. (3) The Registrar shall issue notice in the prescribed manner of the registration of a person as a registered user, to other registered users of the trade mark, if any. (4) The Registrar shall, if so requested by the applicant, take steps for securing that information given for the purposes of an application under this section (other than matters entered in the register) is not disclosed to rivals in trade.

50. Power of Registrar for variation or cancellation of registration asregistered user.

50. Power of Registrar for variation or cancellation of registration as registered user.-(1) Without prejudice to the provisions of section 57, the registration of a person as registered user- (a) may be varied by the Registrar as regards the goods or services in respect of which it has effect on the application in writing in the prescribed manner of the registered proprietor of the trade mark; (b) may be cancelled by the Registrar on the application in writing in the prescribed manner of the registered proprietor or of the registered user or of any other registered user of the trade mark; (c) may be cancelled by the Registrar on the application in writing in the prescribed manner of any person on any of the following grounds, namely:- (i) that the registered user has used the trade mark otherwise than in accordance with the agreement under clause (a) of sub-section (1) of section 49 or in such way as to cause or to be likely to cause, deception or confusion; (ii) that the proprietor or the registered user misrepresented, or failed to disclose, some fact material to the application for registration which if accurately represented or disclosed would not have justified the registration of the registered user; (iii) that the circumstances have changed since the date of registration in such a way that at the date of such application for cancellation they would not have justified registration of the registered user; (iv) that the registration ought not to have been effected having regard to rights vested in the applicant by virtue of a contract in the preformance of which he is interested; (d) may be cancelled by the Registrar on his own motion or on the application in writing in the prescribed manner by any person, on the ground that any stipulation in the agreement between the registered proprietor and the registered user regarding the uality of the goods or services in relation to which the trade mark is to be used is either not being enforced or is not being complied with; (e) may be cancelled by the Registrar in respect of any goods or services in relation to which the trade mark is no longer registered. (2) The Registrar shall issue notice in the prescribed manner in respect of every application under this section to the registered proprietor and each registered user (not being the applicant) of the trade mark. (3) The procedure for cancelling a registration shall be such as may be prescribed: Provided that before cancelling of registration, the registered proprietor shall be given a reasonable opportunity of being heard. 51. Power of Registrar to call for information relating to agreement inrespect of registered users. 51. Power of Registrar to call for information relating to agreement in respect of registered users.-(1) The Registrar may, at any time during the continuance of the registration of the registered user, by notice in writing, require the registered propri tor to confirm to him within one month that the agreement filed under clause (a) of sub-section (1) of section 49 continues to be in force. (2) If the registered proprietor fails to furnish the confirmation within one month as required under sub-section (1), the registered user shall cease to be the registered user on the day immediately after the expiry of the said period and the Registrar hall notify the same.

52. Right of registered user to take proceedings against infringement.

52. Right of registered user to take proceedings against infringement.-(1) Subject to any agreement subsisting between the parties, a registered user may institute proceedings for infringement in his own name as if he were the registered proprietor, maki g the registered proprietor a defendant and the rights and obligations of such registered user in such case being concurrent with those of the registered proprietor. (2) Notwithstanding anything contained in any other law, a registered proprietor so added as defendant shall not be liable for any costs unless he enters an appearance and takes part in the proceedings.

53. No right of permitted user to take proceeding against infringement.

53. No right of permitted user to take proceeding against infringement.-A person referred to in sub-clause (ii) of clause (r) of sub-section (1) of section 2 shall have no right to institute any proceeding for any infringement.

54. Registered user not to have right of assignment or transmission.

54. Registered user not to have right of assignment or transmission.-Nothing in this Act shall confer on a registered user of a trade mark any assignable or transmissible right to the use thereof.

Explanation I.-The right of a registered user of a trade mark shall not be deemed to have been assigned or transmitted within the meaning of this section in the following cases, namely:- (a) where the registered user being an individual enters into a partnership with any other person for carrying on the business concerned; but in any such case the firm may use the trade mark, if otherwise in force, only for so long as the registered user is a member of the firm; (b) where the registered user being a firm subsequently undergoes a change in its constitution; but in any such case the reconstituted firm may use the trade mark, if otherwise in force, only for so long as any partner of the original firm at the time of its registration as registered user, continues to be a partner of the reconstituted firm. Explanation II.- For the purposes of Explanation I, ''firm'' has the same meaning as in the Indian Partnership Act, 1932 (9 of 1932).

55. Use of one of associated or substantially identical trade marksequivalent to use of another.

55. Use of one of associated or substantially identical trade marks equivalent to use of another.-(1) Where under the provisions of this Act, use of a registered trade mark is required to be proved for any purpose, the tribunal may, if and, so far as it hall think right, accept use of a registered associated trade mark, or of the trade mark with additions or alterations not substantially affecting its identity, as an equivalent for the use required to be proved. (2) The use of the whole of a registered trade mark shall, for the purpose of this Act, be deemed to be also use of any trade mark being a part thereof and registered in accordance with sub-section (1) of section 15 in the name of the same proprietor. (3) Notwithstanding anything in section 32, the use of part of the registered trade mark in sub-section (2) shall not be conclusive as to its evidence of distinctiveness for any purpose under this Act.

56. Use of trade mark for export trade and use when form of tradeconnection changes.

56. Use of trade mark for export trade and use when form of trade connection changes.-(1) The application in India of trade mark to goods to be exported from India or in relation to services for use outside India and any other act done in India in relati n to goods to be so exported or services so rendered outside India which, if done in relation to goods to be sold or services provided or otherwise traded in within India would constitute use of a trade mark therein, shall be deemed to constitute use of he trade mark in relation to those goods or services for any purpose for which such use is material under this Act or any other law. (2) The use of a registered trade mark in relation to goods or services between which and the person using the mark any form of connection in the course of trade subsists shall not be deemed to be likely to cause deception or confusion on the ground only that the mark has been or is used in relation to goods or services between which and the said person or a predecessor in title of that person a different form of connection in the course of trade subsisted or subsists.

57. Power to cancel or vary registration and to rectify the register.

57. Power to cancel or vary registration and to rectify the register.-(1) On application made in the prescribed manner to the Appellate Board or to the Registrar by any person aggrieved, the tribunal may make such order as it may think fit for cancelling or varying the registration of a trade mark on the ground of any contravention, or failure to observe a condition entered on the register in relation thereto. (2) Any person aggrieved by the absence or omission from the register of any entry, or by any entry made in the register without sufficient cause, or by any entry wrongly remaining on the register, or by any error or defect in any entry in the register, ay apply in the prescribed manner to the Appellate Board or to the Registrar, and the tribunal may make such order for making, expunging or varying the entry as it may think fit. (3) The tribunal may in any proceeding under this section decide any question that may be necessary or expedient to decide in connection with the rectification of the register. (4) The tribunal, of its own motion, may, after giving notice in the prescribed manner to the parties concerned and after giving them an opportunity of being heard, make any order referred to in sub-section (1) or sub-section (2). (5) Any order of the Appellate Board rectifying the register shall direct that notice of the rectification shall be served upon the Registrar in the prescribed manner who shall upon receipt of such notice rectify the register accordingly.

58. Correction of register.-(1) The Registrar may, on application made in the prescribed manner by the registered proprietor,- (a) correct any error in the name, address or description of the registered proprietor of a trade mark, or any other entry relating to the trade mark; (b) enter any change in the name, address or description of the person who is registered as proprietor of a trade mark; (c) cancel the entry of a trade mark on the register; (d) strike out any goods or classes of goods or services from those in respect of which a trade mark is registered, and may make any consequential amendment or alteration in the certificate of registration, and for that purpose, may require the certificate of registration to be produced to him. (2) The Registrar may, on application made in the prescribed manner by a registered user of a trade mark, and after notice to the registered proprietor, correct any error, or enter any change, in the name, address or description of the registered user.

59. Alteration of registered trade marks.-(1) The registered proprietor of a trade mark may apply in the prescribed manner to the Registrar for leave to add to or alter the trade mark in any manner not substantially affecting the identity thereof, and t e Registrar may refuse leave or may grant it on such terms and subject to such limitations as he may think fit. (2) The Registrar may cause an application under this section to be advertised in the prescribed manner in any case where it appears to him that it is expedient so to do, and where he does so, if within the prescribed time from the date of the advertise ent any person gives notice to the Registrar in the prescribed manner of opposition to the application, the Registrar shall, after hearing the parties if so required, decide the matter. (3) Where leave is granted under this section, the trade mark as altered shall be advertised in the prescribed manner, unless the application has already been advertised under sub-section (2).

60. Adaptation of entries in register to amended or substitutedclassification of oods or services.

60. Adaptation of entries in register to amended or substituted classification of goods or services.-(1) The Registrar shall not make any amendment of the register which would have the effect of adding any goods or classes of goods or services to those n respect of which a trade mark is registered (whether in one or more classes) immediately before the amendment is to be made or of antedating the registration of a trade mark in respect of any goods or services: Provided that this sub-section, shall not apply when the Registrar is satisfied that compliance therewith would involve undue complexity and that the addition or antedating, as the case may be, would not affect any substantial quantity of goods or servi es and would not substantially prejudice the rights of any person. (2) A proposal so to amend the register shall be brought to the notice of the registered proprietor of the trade mark affected and advertised in the prescribed manner, and may be opposed before the Registrar by any person aggrieved on the ground that t e proposed amendment contravenes the provisions of sub-section (1).

61. Special provisions for collective marks.-(1) The provisions of this Act shall apply to collective marks subject to the provisions contained in this Chapter. (2) In relation to a collective mark the reference in clause (zb) of sub-section (1) of section 2 to distinguishing the goods or services of one person from those of others shall be construed as a reference to distinguishing the goods or services of memb rs of an association of persons which is the proprietor of the mark from those of others.

62. Collective mark not to be misleading as to character or significance.

62. Collective mark not to be misleading as to character or significance.-A collective mark shall not be registered if it is likely to deceive or cause confusion on the part of public in particular if it is likely to be taken to be something other than collective mark, and in such case the Registrar may require that a mark in respect of which application is made for registration comprise some indication that it is a collective mark.

63. Application to be accompanied by regulations governing use ofcollective marks.

63. Application to be accompanied by regulations governing use of collective marks.-(1) An application for registration of a collective mark shall be accompanied by the regulations governing the use of such collective mark. (2) The regulations referred to in sub-section (1) shall specify the persons authorised to use the mark, the conditions of membership of the association and, the conditions of use of the mark, including any sanctions against misuse and such other matter as may be prescribed.

64. Acceptance of application and regulations by Registrar.-If it appears to the Registrar that the requirements for registration are satisfied, he shall accept the application together with the regulations, either unconditionally or subject to such con itions including amendments of the said regulations, if any, as he may deem fit or refuse to accept it and if accepted shall notify the regulations.

65. Regulations to be open to inspection.-The regulations referred to in sub-section (1) of section 63 shall be open to public inspection in the same way as the register as provided in section 148.

66. Amendment of regulations.-Any amendment of regulations referred to in sub-section (1) of section 63 shall not be effective unless the amended regulations are filed with the Registrar, and accepted and published by him in accordance with section 64.

67. Infringement proceedings by registered proprietor of collective mark.

67. Infringement proceedings by registered proprietor of collective mark.-In a suit for infringement instituted by the registered proprietor of a collective mark as plaintiff the court shall take into account any loss suffered or likely to be suffered b authorised users and may give such directions as it thinks fit as to the extent to which the plaintiff shall hold the proceeds of any pecuniary remedy on behalf of such authorised users.

68. Additional grounds for removal of registration of collective mark.

68. Additional grounds for removal of registration of collective mark.-The registration of a collective mark may also be removed from the register on the ground- (a) that the manner in which the collective mark has been used by the proprietor or authorised user has caused it to become liable to mislead the public as a collective mark; or (b) that the proprietor has failed to observe, or to secure the observance of the regulations governing the use of the mark. Explanation I.-For the purposes of this Chapter, unless the context otherwise requires, ''authorised user'' means a member of an association authorised to use the registered collective mark of the association.

Explanation II.-For the purposes of this Act, use of a collective mark by an authorised user referred to in Explanation I shall be deemed to be the use by the registered proprietor thereof.

69. Certain provisions of this Act not applicable to certification trademarks.

69. Certain provisions of this Act not applicable to certification trade marks.-The following provisions of this Act shall not apply to certification trade marks, that is to say,- (a) clauses (a) and (c) of sub-section (1) of section 9; (b) sections 18, 20 and 21, except as expressly applied by this Chapter; (c) sections 28, 29, 30, 41, 42, 47, 48, 49, 50, 52, 54 and sub-section (2) of section 56; (d) Chapter XII, except section 107.

70. Registration of certification trade marks.-A mark shall not be registrable as a certification trade mark in the name of a person who carries on a trade in goods of the kind certified or a trade of the provision of services of the kind certified.

71. Applications for registration of certification trade marks.

71. Applications for registration of certification trade marks.-(1) An application for the registration of a mark as a certification trade mark shall be made to the Registrar in the prescribed manner by the person proposed to be registered as the proprie or thereof, and accompanied by a draft of the regulations to be deposited under section 74. (2) Subject to the provisions of section 70, the provisions of sections 18, 19 and 22 shall apply in relation to an application under this section as they apply in relation to an application under section 18, subject to the modification that references t erein to acceptance of an application shall be construed as references to authorisation to proceed with an application. (3) In dealing under the said provisions with an application under this section, the tribunal shall have regard to the like considerations, so far as relevant, as if the application were applications under section 18 and to any other considerations relev nt to applications under this section, including the desirability of securing that a certification trade mark shall comprise some indication that it is a certification trade mark.

72. Consideration of application for registration by Registrar.

72. Consideration of application for registration by Registrar.-(1) The Registrar shall consider the application made under section 71 with regard to the following matters, namely:- (a) whether the applicant is competent to certify the goods in respect of which the mark is to be registered; (b) whether the draft of the regulations to be filed under section 74 is satisfactory; (c) whether in all the circumstances the registration applied for would be to the public advantage, and may either- (i) refuse the application; or (ii) accept the application and approve the said draft of the regulations either without modification and unconditionally or subject to any conditions or limitations, or to any amendments or modifications of the application or of the regulations, which h thinks requisite having regard to any of the said matters. (2) Except in the case of acceptance and approval without modification and unconditionally, the Registrar shall not decide any matter under sub-section (1) without giving the applicant an opportunity of being heard.

73. Opposition to registration of certification trade marks.

73. Opposition to registration of certification trade marks.-When an application has been accepted, the Registrar shall, as soon as may be thereafter, cause the application as accepted to be advertised in the prescribed manner, and the provisions of sect on 21 shall apply in relation to the registration of the mark as they apply in relation to an application under section 18.

74. Filing of regulations governing use of a certification trade mark.

74. Filing of regulations governing use of a certification trade mark.-(1) There shall be filed at the Trade Marks Registry in respect of every mark registered as a certification trade mark regulations for governing the use thereof, which shall include p ovisions as to the cases in which the proprietor is to certify goods or services and to authorise the use of the certification trade mark, and may contain any other provisions which the Registrar may by general or special order, require or permit to be i serted therein (including provisions conferring a right of appeal to the Registrar against any refusal of the proprietor to certify goods or to authorise the use of the certification trade mark in accordance with the regulations); and regulations so file shall be open to inspection in like manner as the register as provided in section 148. (2) The regulations so filed may, on the application of the registered proprietor, be altered by the Registrar. (3) The Registrar may cause such application to be advertised in any case where it appears to him expedient so to do, and where he does so, if within the time specified in the advertisement any person gives notice of opposition to the application, the Re istrar shall not decide the matter without giving the parties an opportunity of being heard.

75. Infringement of certification trade marks.-The right conferred by section 78 is infringed by any person who, not being the registered proprietor of the certification trade mark or a person authorised by him in that behalf under the regulations filed nder section 74, using it in accordance therewith, uses in the course of trade, a mark, which is identical with, or deceptively similar to the certification trade mark in relation to any goods or services in respect of which it is registered, and in such manner as to render the use of the mark likely to be taken as being a use as a trade mark.

76. Acts not constituting infringement of certification trade marks.

76. Acts not constituting infringement of certification trade marks.-(1) Notwithstanding anything contained in this Act, the following acts do not constitute an infringement of the right to the use of a registered certification trade mark- (a) where a certification trade mark is registered subject to any conditions or limitations entered on the register, the use of any such mark in any mode, in relation to goods to be sold or otherwise traded in any place, or in relation to goods to be exp rted to any market or in relation to services for use or available for acceptance in any place, country or territory or in any other circumstances, to which having regard to any such limitations, the registration does not extend; (b) the use of a certification trade mark in relation to goods or services certified by the proprietor of the mark if, as to those goods or services or a bulk of which they form part, the proprietor or another in accordance with his authorisation under t e relevant regulations has applied the mark and has not subsequently removed or obliterated it, or the proprietor has at any time expressly or impliedly consented to the use of the mark; (c) the use of a certification trade mark in relation to goods or services adapted to form part of, or to be accessory to, other goods in relation to which the mark has been used without infringement of the right given as aforesaid or might for the time eing be so used, if the use of the mark is reasonably necessary in order to indicate that the goods or services are so adapted and neither the purpose nor the effect of the use of the mark is to indicate otherwise than in accordance with the fact that th goods or services are certified by the proprietor. (2) Clause (b) of sub-section (1) shall not apply to the case of use consisting of the application of a certification trade mark to goods or services, notwithstanding that they are such goods or services as are mentioned in that clause if such applicati n is contrary to the regulations referred to in that clause. (3) Where a certification trade mark is one of two or more trade marks registered under this Act, which are identical or nearly resemble each other, the use of any of those trade marks in exercise of the right to the use of that trade mark given by regis ration, shall not be deemed to be an infringement of the right so given to the use of any other of those trade marks.

77. Cancellation or varying of registration of certification trade marks.

77. Cancellation or varying of registration of certification trade marks.-The Registrar may, on the application in the prescribed manner of any person aggrieved and after giving the proprietor an opportunity of opposing the application, make such order a he thinks fit for expunging or varying any entry in the register to a certification trade mark, or for varying the regulations, on any of the following grounds, namely:- (a) that the proprietor is no longer competent, in the case of any of the goods or services in respect of which the mark is registered, to certify those goods or services; (b) that the proprietor has failed to observe any provisions of the regulations to be observed on his part; (c) that it is no longer to the public advantage that the mark should remain registered; (d) that it is requisite for the public advantage that if the mark remains registered, the regulations should be varied.

78. Rights conferred by registration of certification trade marks.

78. Rights conferred by registration of certification trade marks.-(1) Subject to the provisions of sections 34, 35 and 76, the registration of a person as a proprietor of certification trade mark in respect of any goods or services shall, if valid, giv to that person the exclusive right to the use of the mark in relation to those goods or services. (2) The exclusive right to the use of a certification trade mark given under sub-section (1) shall be subject to any conditions and limitations to which the registration is subject.

79. Textile goods.-The Central Government may prescribe classes of goods (in this Chapter referred to as textile goods) to the trade marks used in relation to which the provisions of this Chapter shall apply; and subject to the said provisions, the other provisions of this Act shall apply to such trade marks as they apply to trade marks used in relation to other classes of goods.

80. Restriction on registration of textile goods.-(1) In respect of textile goods being piece goods- (a) no mark consisting of a line heading alone shall be registrable as a trade mark; (b) a line heading shall not be deemed to be capable of distinguishing; (c) the registration of trade mark shall not give any exclusive right to the use of a line heading. (2) In respect of any textile goods, the registration of letters or numerals, or any combination thereof, shall be subject to such conditions and restrictions as may be prescribed.

81. Stamping of piece goods, cotton yarn and thread.-(1) Piece goods, such as are ordinarily sold by length or by the piece, which have been manufactured, bleached, dyed, printed or finished in premises which are a factory, as defined in the Factories A t, 1948 (63 of 1948), shall not be removed for sale from the last of such premises in which they underwent any of the said processes without having conspicuously stamped in international form of Indian numerals on each piece the length thereof in standar yards, or in standard yards and a fraction of such a yard, or in standard metres or in standard metres and a fraction of such a metre, according to the real length of the piece, and, except when the goods are sold from the factory for export from India, without being conspicuously marked on each piece with the name of the manufacturer or of the occupier of the premises in which the piece was finally processed or of the wholesale purchaser in India of the piece. (2) Cotton yarn such as is ordinarily sold in bundles, and cotton thread, namely, sewing, darning, crochet or handicraft thread, which have been manufactured, bleached, dyed or finished in any premises not sale from those premises unless, in accordance with the said rules in the case of yarn- exempted by the rules made under section 82 sha l not be removed for (a) the bundles are conspicuously marked with an indication of the weight of yarn in English or the metric system in each bundles; and (b) the count of the yarn contained in the bundles and in the case of thread each unit is conspicuously marked with the length or weight of thread in the unit and in such other manner as may be required by the said rules; and (c) except where the goods are sold from the premises for export from India, unless each bundle or unit is conspicuously marked with the name of the manufacturer or of the wholesale purchaser in India of the goods: Provided that the rules made under section 82 shall exempt all premises where the work is done by members of one family with or without the assistance of not more than ten other employees, and all premises controlled by a co-operative society where not m re than twenty workers are employed in the premises.

82. Determination of character of textile goods by sampling.

82. Determination of character of textile goods by sampling.-(1) For the purposes of this Act, the Central Government may make rules- (a) to provide, with respect to any goods which purport or are alleged to be of uniform number, quantity, measure, guage or weight, for the number of samples to be selected and tested and for the selection of the samples; (b) to provide, for the manner in which for the purposes of section 81 cotton yarn and cotton thread shall be marked with the particulars required by that section, and for the exemption of certain premises used for the manufacture, bleaching, dying or f nishing of cotton yarn or cotton thread from the provisions of that section; and (c) declaring what classes of goods are included in the expression "piece goods such as are ordinarily sold by length or by the piece" for the purpose of section 81, of this Act or clause (n) of sub-section (2) of section 11 of the Customs Act, 1962. (2) With respect to any goods for the selection and testing of samples of which provision is not made in any rules for the time being in force under sub-section (1), the court or officer of customs, as the case may be, having occasion to ascertain the n mber, quantity, measure, gauge or weight of the goods, shall, by order in writing, determine the number of samples to be selected and tested and the manner in which the samples are to be selected. (3) The average of the results of the testing in pursuance of rules under sub-section (1) or of an order under sub-section (2) shall be prima facie evidence of the number, quantity, measure, gauge or weight, as the case may be, of the goods. (4) If a person having any claim to, or in relation to, any goods of which samples have been selected and tested in pursuance of rules under sub-section (1), or of an order under sub-section (2), desires that any further samples of the goods be selected and tested, such further samples shall, on his written application and on the payment in advance by him to the court or officer of customs, as the case may be, of such sums for defraying the cost of the further selection and testing as the court or offic r may from time to time require, be selected and tested to such extent as may be permitted by rules made by the Central Government in this behalf or as, in the case of goods with respect to which provision is not made in such rules, the court reasonable, the samples being selected in the manner prescribed under sub-section (1), or in sub-section (2), as the case may be. or officer f customs may determine in the circumstances to be (5) The average of the results of the testing referred to in sub-section (3) and of the further testing under sub-section (4) shall be conclusive proof of the number, quantity, measure, gauge or weight, as the case may be, of the goods.

83. Establishment of Appellate Board.-The Central Government shall, by notification in the Official Gazette, establish an Appellate Board to be known as the Intellectual Property Appellate Board to exercise the jurisdiction, powers and authority confer ed on it by or under this Act.

84. Composition of Appellate Board.-(1) The Appellate Board shall consist of a Chairman, Vice-Chairman and such number of other Members, as the Central Government may deem fit and, subject to the other provisions of this Act, the jurisdiction, powers an authority of the Appellate Board may be exercised by Benches thereof. (2) Subject to the other provisions of this Act, a Bench shall consist of one Judicial Member and one Technical Member and shall sit at such place as the Central Government may, by notification in the Official Gazette, specify. (3) Notwithstanding anything contained in sub-section (2), the Chairman- (a) may, in addition to discharging the functions of the Judicial Member or Technical Member of the Bench to which he is appointed, discharge the functions of the Judicial Member or, as the case may be, the Technical Member, of any other Bench; (b) may transfer a Member from one Bench to another Bench; (c) may authorise the Vice-Chairman, the Judicial Member or the Technical Member appointed to one Bench to discharge also the functions of the Judicial Member or the Technical Member, as the case may be, of another Bench. (4) Where any Benches are constituted, the Central Government may, from time to time, by notification, make provisions as to the distribution of the business of the Appellate Board amongst the Benches and specify the matters which may be dealt with by e ch Bench. (5) If any question arises as to whether any matter falls within the purview of the business allocated to a Bench, the decison of the Chairman shall be final.

Explanation.- For the removal of doubts, it is hereby declared that the expression ''matter'' includes an appeal under section 91. (6) If the Members of a Bench differ in opinion on any point, they shall state the point or points on which they differ, and make a reference to the Chairman who shall either hear the point or points himself or refer the case for hearing on such point o points by one or more of the other Members and such point or points shall be decided according to the opinion of the majority of the Members who have heard the case, including those who first heard it.

85. Qualifications for appointment as Chairman, Vice-Chairman, or otherMembers.

85. Qualifications for appointment as Chairman, Vice-Chairman, or other Members.-(1) A person shall not be qualified for appointment as the Chairman unless he- (a) is, or has been, a Judge of a High Court; or (b) has, for at least two years, held the office of a Vice-Chairman. (2) A person shall not be qualified for appointment as the Vice-Chairman, unless he- (a) has, for at least two years, held the office of a Judicial Member or a Technical Member; or (b) has been a member of the Indian Legal Service and has held a post in Grade I of that service or any higher post for at least five years. (3) A person shall not be qualified for appointment as a Judicial Member, unless he- (a) has been a member of the Indian Legal Service and has held the post in Grade I of that Service for at least three years; or (b) has, for at least ten years, held a civil judicial office. (4) A person shall not be qualified for appointment as a Technical Member, unless he- (a) has, for at least ten years, exercised functions of a tribunal under this Act or under the Trade and Merchandise Marks Act, 1958, or both, and has held a post not lower than the post of a Joint Registrar for at least five years; or (b) has, for at least ten years, been an advocate of a proven specialised experience in trade mark law. (5) Subject to the provisions of sub-section (6), the Chairman, Vice-Chairman and every other Member shall be appointed by the President of India. (6) No appointment of a person as the Chairman shall be made except after consultation with the Chief Justice of India.

86. Term of office of Chairman, Vice-Chairman and other Members.

86. Term of office of Chairman, Vice-Chairman and other Members.-The Chairman, Vice-Chairman or other Members shall hold office as such for a term of five years from the date on which he enters upon his office or until he attains,- (a) in the case of Chairman and Vice-Chairman, the age of sixty-five years; and (b) in the case of a Member, the age of sixty-two years, whichever is earlier

87. Vice-Chairman or senior-most Member to act as Chairman or dischargehis functions in certain circumstances.

87. Vice-Chairman or senior-most Member to act as Chairman or discharge his functions in certain circumstances.-(1) In the event of or any vacancy in the office of the Chairman by reasons of his death, resignation or otherwise, the Vice-Chairman and in h s absence the senior-most Member shall act as Chairman until the date on which a new Chairman, appointed in accordance with the provisions of this Act to fill such vacancy, enters upon his office. (2) When the Chairman is unable to discharge his functions owing to his absence, illness or any other cause, the Vice-Chairman and in his absence the senior-most Member shall discharge the functions of the Chairman until the date on which the Chairman r sumes his duty.

88. Salaries, allowances and other terms and conditions of service ofChairman, Vice-Chairman and other Members.

88. Salaries, allowances and other terms and conditions of service of Chairman, Vice-Chairman and other Members.-(1) The salaries and allowances payable to, and other terms and conditions of service (including pension, gratuity and other retirement bene its), of the Chairman, Vice-Chairman and other Members shall be such as may be prescribed. (2) Notwithstanding anything contained in sub-section (1), a person who, immediately before the date of assuming office as the Chairman, Vice-Chairman or other Member was in service of Government, shall be deemed to have retired from service on the date n which he enters upon office as the Chairman, Vice-Chairman or other Member.

89. Resignation and removal.-(1) The Chairman, Vice-Chairman or any other Member may, by notice in writing under his hand addressed to the President of India, resign his office: Provided that the Chairman, Vice-Chairman or any other Member shall, unless he is permitted by the President of India to relinquish his office sooner, continue to hold office until the expiry of three months from the date of receipt of such notice or un il a person duly appointed as his successor enters upon his office or until the expiry of his term of office, whichever is earlier. (2) The Chairman, Vice-Chairman or any other Member shall not be removed from his office except by an order made by the President of India on the ground of proved misbehaviour or incapacity after an inquiry made by a Judge of the Supreme Court in which he Chairman, Vice-Chairman or other Member had been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. (3) The Central Government may, by rules, regulate the procedure for the investigation of misbehaviour or incapacity of the Chairman, Vice-Chairman or other Member referred to in sub-section (2).

90. Staff of Appellate Board.-(1) The Central Government shall determine the nature and categories of the officers and other employees required to assist the Appellate Board in the discharge of its functions and provide the Appellate Board with such off cers and other employees as it may think fit. (2) The salaries and allowances and conditions of service of the officers and other employees of the Appellate Board shall be such as may be prescribed. (3) The officers and other employees of the Appellate Board shall discharge their functions under the general superintendence of the Chairman in the manner as may be prescribed.

91. Appeals to Appellate Board.-(1) Any person aggrieved by an order or decision of the Registrar under this Act, or the rules made thereunder may prefer an appeal to the Appellate Board within three months from the date on which the order or decision s ught to be appealed against is communicated to such person preferring the appeal. (2) No appeal shall be admitted if it is preferred after the expiry of the period specified under sub-section (1): Provided that an appeal may be admitted after the expiry of the period specified therefor, if the appellant satisfies the Appellate Board that he had sufficient cause for not preferring the appeal within the specified period. (3) An appeal to the Appellate Board shall be in the prescribed form and shall be verified in the prescribed manner and shall be accompanied by a copy of the order or decision appealed against and by such fees as may be prescribed.

92. Procedure and powers of Appellate Board.-(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of thi Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing. (2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, amely:- (a) receiving evidence; (b) issuing commissions for examination of witnesses; (c) requisitioning any public record; and (d) any other matter which may be prescribed. (3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purpose of section 196, of the Indian Penal Code (45 of 1860), and the Appellate Board shall be deemed to b a civil court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).

93. Bar of jurisdiction of courts, etc.-No court or other authority shall have or, be entitled to, exercise any jurisdiction, powers or authority in relation to the matters referred to in sub-section (1) of section 91.

94. Bar to appear before Appellate Board.-On ceasing to hold office, the Chairman, Vice-Chairman or other Members shall not appear before the Appellate Board or the Registrar.

95. Conditions as to making of interim orders.-Notwithstanding anything contained in any other provisions of this Act or in any other law for the time being in force, no interim order (whether by way of injunction or stay or any other manner) shall be m de on, or in any proceedings relating to, an appeal unless- (a) copies of such appeal and of all documents in support of the plea for such interim order are furnished to the party against whom such appeal is made or proposed to be made; and (b) op<